NEW EDITION ^^
OF THE
BABYLONIAN TALMOD
©rtgtnal XTcjt, TBMtcb, Correcte&, fformulateO, an6
Xi;ran0late5 into Bngltab
BV
MICHAEL L. RODKINSON
SECTION JURISPRUDENCE (DAMAGES)
TRACTS BABA KAMA (FIRST GATH)
Volume 11. (X.)
Boston
THE TALMUD SOCIETY
1918
EXPLANATORY REMARKS.
In our translation we adopted these principles:
}. Tfnan of the original — We have learned in a Mishna; Tania^^Vft haTC
learned in a Boraitha; Iteniar — It was taught.
2. Questions are indicated by the interrogation point, and are immediately
followed by the answers, without being so marked.
3. When in the original there occur two statements separated by the phrase,
Lishna achrena or Wa'ibayith Aema ox Ikha ^'a/«r? (literally, "otherwise interpreted"),
we translate only the second.
4. As the pages of the original are indicated in our new Hebrew edition, it is not
deemed necessary to mark them in the English edition, this being only a translation
from the latter.
5. Words or passages enclosed in round parentheses ( ) denote the explanation
rendered by Rashi to the foregoing sentence or word. Square parentheses [ ] contain
commentaries by authorities of the last period of construction of the Gemara.
CorYKIGMT, 1903, 8V
MICHAEL L. RODKINSON.
Copyright 1916, by
NEW TALMUD PUBLISHING SOCIETY
CONTENTS.
Introduction to the Three Gates of Section Jurisprudence, v
Synopsis of Subjects of Vol. X. — Tract Baba Kama (The First
Gate), «
CHAPTER I.
The Four Principal Tort-feasors ; the Different Modes of
Restitution ; the Vicious and Non-vicious Animals ; the
Appraisement before the Court, i
CHAPTER n.
Rules regulating the Principle of Viciousness and Non-vi-
CIOUSNESS IN the FoUR PRINCIPAL TORT-FEASORS ENUMERATED
IN THE First Mishna, 30
CHAPTER HI.
Rules concerning Placing Vessels on Public Ground. Injuries
CAUSED BY Pedestrians to Each Other with Their Loads,
The Vicious and Non-vicious Oxen— if They have Done
Injury to Each Other or to Human Beings, etc., . • 57
CHAPTER IV.
Rules in regard to Oxen repeatedly Goring Other Oxen and
Human Beings. Oxen of Orphans and Guardians and
What is Considered "Guarded," 82
CHAPTER V.
Rules concerning a Goring Ox; Excavations on Public and
Private Premises; Excavations made by Partners, etc., . 106
iv CONTENTS.
CHAPTER VI.
PAGK
Regulations concerning the Guarding of Animals against
DOING Damage. Concerning the Starting of Fire; if It
Passes over a Wall. For What Distances passed by a
OF Fire is the One Who Started it Liable? . . • 131
CHAPTER VII.
Rules and Regulations concerning the Payment of Double,
and Four and Five, and Collusive Witnesses ; the Raising
Young Cattle in Palestine, etc., 149
CHAPTER VIII.
The Five Items of Payment in Case of Injury to a Human
Being, independently of the Criminal Liability. The
Liability for Assault when no Injury is Sustained, . .182
INTRODUCTION TO THE THREE GATES OF
SECTION JURISPRUDENCE.
The three tracts Baba Kama, Metzia, and Bathra (the First,
Second, and Third Gates) are unique in the whole Talmud in
this respect, that they bear no name indicating the contents, as
is the case with all other tracts of the Talmud, and we do not
find in any commentary any explanation or discussion of the
fact. • It may be because the reason is very simple, namely, that
these three tracts are the only ones which treat purely of civil
law, for even in cases of larceny only the civil side (as the actual
damage, and the fine for causing it) is treated of (if there is here
and there mentioned some criminal liability, it is only incident-
ally as a citation in course of the discussion) ; and as the cases
are very numerous and varying in character, no appropriate title
could be found to indicate the contents of each tract. Indeed,
so numerous are they that we may safely say there is no civil
case which can possibly arise between man and man that is not
treated of in these tracts. The other tracts of this section, which
are enumerated in our introduction to Volume I. (IX.), treat each
of a separate and distinct subject and not of purely civil law.
For those especially interested in comparative jurisprudence
we give below two articles by prominent publicists, which
illustrate only two of the many important principles scattered
all over the Talmud.
The first, ''The Talmud," by I. DTsraeli, is an extract from
'' Curiosities of Literature," and is as follows :
In the order of damages containing rules how to tax the damages done by
man or beast or other casualties their distinctions are as nice as their cases
are numerous. What beasts are innocent and what convict. By the one
they mean creatures not naturally used to do mischief in any particular way,
and by the other, those that naturally or by a vicious habit are mischievous
that way. The tooth of a beast is convict, when it is proved to eat its usual
food, the property of another man, and full restitution must be made ; but
if a beast that is used to eat fruit and herbs, gnaws clothes or damages tools,
which are not its usual food, the owner of the beast shall pay but half the
vi INTRODUCTION.
damage when committed on the property of the injured person ; but if the
injury is committed on the property of the person who does the damage, he
is free, because the beast gnawed what was not its usual food. And thus, if
the beast of A gnaws or tears the clothes of B in B's house or grounds, A
shall pay half the damages, but if B's clothes are injured in A's grounds by
A's beast, A is free, for what had B to do to put his clothes in A's grounds ?
They made such subtile distinctions, as when an ox gores a man or beast,
the law inquired into the habits of the beast ; whether it was an ox that used
to gore, or an ox that was not used to gore.
However acute these niceties sometimes were, they were often ridiculous.
No beast could be cottvicted of being vicious till evidence was given that he
had done mischief three successive days ; but if he leaves off those vicious
tricks for three days more, he is innocent again. An ox may be convict of
goring an ox and not a man, or of goring a man and not an ox ; naj^ of gor-
ing on the Sabbath and not on a working day. Their aim was to make the
punishment depend on the proofs of the design of the beast that did the in-
jury, but this attempt evidently led them to distinctions much too subtile
and obscure. Thus some rabbins say that the morning prayer of the Shem'ah
must be read at the time they can distinguish blue from white; but another,
more indulgent, insists it may be when we can distinguish blue from green !
which latter colors are so near akin as to require a stronger light. With
the same remarkable acuteness in distinguishing things is their law respect-
ing not touching fire on the Sabbath. Among those which are specified in
this constitution, the rabbins allow the minister to look over young children
by lamp-light but he shall not read himself. The minister is forbidden to
read by lamp-light, lest he should trim his lamp ; but he may direct the chil-
dren where they should read, because that is quickly done, and there would
be no danger of trimming his lamp in their presence, or suffering any of them
to do it in his. All these regulations, which some may conceive as minute
and frivolous, show a great intimacy with the human heart, and a spirit of
profound observation which had been capable of achieving great pur-
poses.
The owner of an innocent beast only pays half the costs for the mischief
incurred. Man is always convict and for all mischief he does he must pay
full costs. However, there are casual damages — as when a man pours
water accidentally on another man ; or makes a thorn-hedge which annoys
his neighbour ; or falling down, and another by stumbling on him incur
harm : how such compensations are to be made. He that has a vessel of
another's in his keeping, and removes it, but in the removal breaks it, must
swear to his own integrity ; i.e., that he had no design to break it. All of-
fensive or noisy trades were to be carried on at a certain distance from a
town. Where there is an estate, the sons inherit, and the daughters are
maintained, but if there is not enough for all, the daughters are maintained
and the sons must get their living as they can, or even beg. The contrary
to this excellent ordination has been observed in Europe.
The second, of which a literal translation follows, was written
in Hebrew by Dr. D. H. Farbstein, a counsellor-at-law in Zurich,
THE THREE GATES (JURISPRUDENCE), vii
Switzerland, in the '' Hashana " (Year-book) for 1900, under the
title '* One Cannot Grant that Which is not in Existence."
There is no law which has not its reason. Every legal principle is the
result of a certain economic and political condition ; it is the product of a
certain epoch, aiming to benefit the political and economic life of that his-
toric epoch.
The legal principle that one cannot grant that which is not yet in exist-
ence had its origin in the Hebrew nation and was the product of a certain
epoch, and we shall endeavor here to explain the motives which prompted
the development of this legal precept.
This principle existed also in the laws of other Semitic nations in general,
and in the Mahometan laws in particular. It was, however, unknown to
the Roman law, as according to the Roman law one could grant that which
was not yet in existence, and the sale of an article which existed only in
expectation was valid, and even the mere expectation could form the subject-
matter of a purchase or sale.
The reason of this difference between the Semitic laws in general, and
the Jewish laws in particular, and the Roman laws on this point lies, in my
judgment, in the prohibition of taking usury.
"Thy money shalt thou not give him upon usury, nor lend him thy vic-
tuals for increase " [Lev. xxv. 37] is one of the principal Mosaic laws. And
as it is prohibited to give money upon usury, so also is it prohibited to raise
the price ; as, for instance, if the price of an article is such and such in cash,
it is prohibited to raise the price of such article if sold on credit for a
certain time, for it is nothing but indirect usury.
This law was necessary as long as it was prohibited to give money upon
usury ; in our own times, however, when industry and commerce have
developed so much, it is very usual to buy and sell things which exist only
in expectation. In the time of the Talmudists the one who sold that which
was not in existence was not an ordinary merchant, but only one who
needed money. For instance, a farmer needed money. He applied to the
money-lender for a loan. The money-lender was willing to make the loan,
but was kept back by the prohibition to give money on usury. In order to
evade this prohibition he bought of the farmer the future products of his
farm, paying him only a very low price. The difference between the actual
value of the products and the price paid by the lender is nothing but indirect
usury.
Similar methods are practised even now in those countries where usury
is prohibited by the law of the land. The Talmudists, in order to prevent
such and similar evasions of the prohibition to take usury, have established
the principle that no one can grant that which is not yet in existence ; for
the same reason, they also prohibited the fixing of a price upon future products
before the market price is established. They were, at the same time, careful
in stating that one cannot grant, and not that one cannot buy, affording
thereby protection to the grantor only that he may rescind the sale if he
elects to do so.
We see, then, that the rule that " one cannot grant," etc., was established
with the end in view of preventing any evasion of the prohibition to take usury.
viii INTRODUCTION : JURISPRUDENCE.
In those days commerce was not so developed as it is in our days, nor was
money of such established currency as it is now. Nowadays one invests
money in merchandise and then sells the merchandise and realizes his money
with a profit, which was not so in those days ; and for that reason the taking
of usury was prohibited, for money could bring no economic benefit to its
owner.
But although it was prohibited to grant that which was not yet in exis*
tence, still it was allowed to grant that which would bring benefit in the
future — as, for instance, to lease land for cultivation — for the substance pro-
ducing the benefit is in existence.
This distinction between interest (compensation for the use of money)
and rent (compensation for the use of an article producing benefit) was
drawn also by the Catholic theologians of the middle ages, who also prohib-
ited the taking of usury, but permitted the receipt of rent.
We, however, cannot fully agree with Dr. Farbstein, for the
following reasons :
(a) The principal things concerning which this rule was made
were marriage and inheritance. If one marries a woman upon
the condition that she should become a proselyte, the marriage is
null and void, because it is on condition of something which was
not yet in existence. The same is the case as regards inheritance
— one cannot say to a woman : '* I will leave my estate to the
children you may bear." In both these cases, usury cannot be
the reason.
{b) The rule that a man cannot grant that which is not yet
in existence is not an established one by all the sages, for there
were many of the most popular — as R. Eliezer b. Jacob, R. Meir,
and R. Juhudah the Prince — who held that one might grant that
which is not yet in existence (see Kiddushin, 62 b, at the end),
and certainly all of those sages were aware of the prohibition of
usury.
It seems to us, therefore, that the sages who hold that such a
thing cannot be sold is because they considered speculative trans-
actions as robbery, so that they prohibited all kinds of gaming
existing at that time ; and the one who participated in such
games was disqualified as a witness, because he was considered a
robber. We find, however, in this volume, p. 198, that a woman
may sell the benefit of her marriage contract, although it looks
like speculation ; for she may die during the life-time of her
husband, and her husband will inherit from her. But even this
is discussed, and seems to be an enactment of some sages for the
benefit of the woman. (See text.)
SYNOPSIS OF SUBJECTS
OF
TRACT BABA KAMA (THE FIRST
GATE).*
CHAPTER I.
MiSHNA /. There are four principal cases of tort, etc. One thing is
common to all. They are all likely to do damage and must be guarded
against. The case of doing damage by digging up gravel. The different
explanations of the word " mabeh " by Rabh and Samuel (foot-note).
There are thirteen principal tort-feasors. The depository,! etc. There are
twenty-four principal tort-feasors. What are the derivatives of all those
principals ? Why are the four principals, ox, excavation, mabeh, and fire,
enumerated separately in the Scripture ? From what and what kind of
property must damage be collected ? When the standard is taken, is it
taken of one's own lands or of those of the public in general ? Inordernotto
close the door to borrowers, the sages have enacted that creditors should be
paid out of the medium estates. If one conveys his estates to one or several
persons, from whom and from what estates shall the creditors collect the
money due them ? In case one does a meritorious thing he shall do it up
to one-third, 1-16
MiSHNAS //. TO V. In all that I am charged with taking care of I have
prepared the damage. There is a more rigorous rule in case of the ox
than in the cases of the pit and the fire, and vice versa. How so ? If one
left his ox in charge of five persons, and one of them left intentionally and
the ox caused damage, what is the law ? No appraisement is made for a
thief or robber. If one hypothecates his slave or his ox and thereafter sells
him. There is a difference between movable and immovable real estate.
Slaves are considered movable real estate. During the killing, the bring-
ing of the suit, and the making of the award there shall be one and the
same owner. There are five cases which are considered non-vicious and
* See introduction to Synopsis in Tract Aboth, Vol. I. (IX.), p. xi.
f Farther on we use the term " gratuitous bailee," as being- more compre-
hensive.
^ SYNOPSIS OF SUBJECTS.
five which are considered vicious. The tooth is considered vicious to con*
sume, etc. What is a Bardalis ? What is meant by " best estates " ? The
meaning of the verse Is. xxxii. 20, 16-29
CHAPTER II.
MiSHNAS /. TO III. What tendency makes the foot to be considered
vicious ? Cocks that were flying from one place to another, and broke
vessels with their wings. Cocks that were hopping on dough or on fruit,
and made the same dirty, or that were flying and the wind produced by
their wings damaged vessels, or that were pecking at a rope from which a
water-pail was suspended, and, severing the rope, broke the water-pail —
what is the law ? The distinction between primary and secondary force.
A dog that snatched and carried off a cake from the burning coals, and with
the burning coal that stuck in the cake set fire to the barn, etc. There can
be viciousness in case of " gravel in the usual way." If an animal was
walking in a place where it was impossible not to kick up gravel, and she
kicked, and by so doing kicked up gravel and caused damage ; or if an animal
caused damage by shaking the tail — what is the law ? What tendency
makes the tooth to be considered vicious ? It happened that an ass con-
sumed a loaf of bread contained in a basket and chewed up the basket, etc.
If an animal was standing on private ground and an article was rolling
toward the private ground, etc. About one who takes up his dwelling in
the court of his neighbor without the latter's knowledge. One who rents a
house from Reuben must pay the rent to Simeon, etc. If one uses an un-
occupied house of another for storing wood and straw, etc., what is the law?
A certain person erected a palace on the ruins belonging to orphans, etc.
A dog or a goat that jumps down from the top of a roof and breaks vessels
liable for the whole damage. If, however, they fall down, there is no
liability. Is one's fire considered one's arrow or one's property ? There is
no liability for damages done by fire to concealed articles. How can such
a case be found in the biblical law t The mouth of an animal (consuming
something on the premises of the plaintiff), is it considered as if yet in the
court of the plaintiff? There were certain goats belonging to the family of
Tarbu that were doing damage to the property of R. Joseph, . 3o-47
MiSHNAS IV. TO VI. What ox is considered non-vicious and what
vicious ? One that has been warned for three days. The three days in
question, are they such as to make the ox vicious, or do they also involve
the owner ? For one who sets his neighbor's dog on a third person, what is
the law ? An ox that gored, pushed, bit, lay down on, or kicked while on
public ground pays half. The a fortiori argument regarding the half-
payment of the horn. An ox that steps with his foot on a child lying on the
premises of the plaintiff, what is the law in regard to the payment of atone-
ment money ? A human being is considered always vicious. One who
carries a stone in his lap without being aware of it, and while getting up
from his seat drops it, as regards damages he is liable. One who drops a
vessel from the top of a roof upon the ground which has been covered with
SYNOPSIS OF SUBJECTS. xi
pillows, and if another person remove them before the dropping of the
vessel, etc., what is the law ? Is a slave considered one's body, and an ox
one's property ? 47-S6
CHAPTER III.
MiSHNAS /. TO V. If one place a jug on public ground and another
person stumble over it and break it, what is the law ? One who kicks an-
other with his knee is fined three selas ; with the foot, five ; with the fist,
thirteen ; what is the fine if one strike his neighbor with the handle or the
iron of the hoe ? A jug that broke on public ground and its contents caused
g person to slip and fall, or one to be injured by its fragments, what is the
law ? About one who renounces ownership to his articles that cause
damage. One who empties water into public ground, or one who builds
his fence of thorns ; or a fence that falls into public ground, and some
persons were injured thereby, he is liable. The former pious men used to
bury their thorns and broken glass in their fields three spans below the
surface. All those who obstruct a public thoroughfare by placing chattels
therein and cause damage are liable. If one carrying a barrel followed one
carrying a beam, and the barrel was broken by the beam, what is the law ?
Potters and glaziers that walked one following the other, and one stumbled
and fell, etc. If they all fell because of the first one, the first is liable for the
damage of all of them, 57-69
MiSHNAS VI. TO XJ/I. Two that walked on public ground, one running
and the other one walking, etc., what is the law ? One who chopped wood
on public ground and caused damage on private ground, etc. One who
enters a carpenter's shop without permission, and was struck on his face by
a flying splinter. About employees who came to demand their wages from
their employer and were gored by his ox or bitten by his dog. About two
non-vicious oxen that wounded each other.
The difference in the explanation of the verse Exod. xxi. 35. About a
non-vicious ox that has done damage and was sold, consecrated, slaughtered,
or presented to somebody. About an ox of the value of two hundred selas
that gored another ox of equal value and the carcass was of no value what-
ever. There are cases when one is liable for the acts of his ox and is free ii
they are his own acts, and vice versa. How so ? The rule is that the
burden of proof is upon the plaintiff. If one claims that he is positive, while
the other one is not positive, what is the law ? . . . . 69-^8 1
CHAPTER IV.
MiSHNAS /. TO IV. An ox that gores four or five oxen one after another,
the last of them must be paid from the body of the goring ox, if he was ye«
considered non-vicious. About an ox that is vicious towards his own species,
but not towards other species, or towards human beings, etc. There is a
case where an ox became vicious " in alternate order." About an ox
xii SYNOPSIS OF SUBJECTS.
belonging to an Israelite that gored an ox belonging to the sanctuary (see foot-
note). An ox of a sound person that gored an ox belonging to a deaf-mute,
idiot, or minor, there is a liability. If the reverse was the case there is
none. There is a difference of opinion of the Tanaim as to whether a
guardian is appointed in order to collect from the body of the ox. Guardians
pay from the best estates, but do not pay the atonement money. About one
who borrows an ox with the understanding that he was non-vicious and it
was found out that he was vicious, 82-93
MiSHNAS V. TO IX. An ox that killed a man by goring him, if he was
a vicious one, the atonement money is to be paid, but not when he was a
non-vicious one. How can there be found a vicious ox in regard to man ?
If one confers, saying, " My ox has killed a certain person," or " his ox," he
has to pay on his own testimony. If one's fire has done damage without
intention, is there a liability or not ? About an ox that was rubbing against
a wall, whereby the wall fell upon a human being and killed him. About
an ox belonging to a woman, to orphans, or their guardian, etc., that killed
a man. About an ox that was sentenced to be put to death and his owner
consecrated him. About an ox delivered to a gratuitous bailee or a borrower,
etc. About an ox which was properly locked up, but yet broke out and did
damage. Whence is it deduced that one must not raise a noxious dog in his
house, nor maintain a defective ladder ? 93-105
CHAPTER V.
MiSHNAS /. TO yi. About an ox that gored a cow and the new-born calf
was found dead at her side. The cow and her offspring are not separately
appraised. A potter that placed his pottery in the court of another, or one
who led his ox into the court of another without permission, what is the
law ? When he assured the safety of the ox, did it only extend to himself or
also to all cattle ? About a woman that entered a house to bake, and the
house-owner's goat, having consumed the dough, became feverish and died.
About one who enters a court without permission and injures the court-
owner, or the latter is injured through him. About one who said: "Lead
in your ox and take care of him," and he did damage or was injured. About
an ox which intended to gore another ox, and injured a woman and caused
her to miscarry. To whom must the compensation for the miscarriage be
paid, to the woman or to her husband ? Does the increase in the valuation
also belong to the husband ? About an Israelite's pledge which is in the
hands of a proselyte, and the latter dies without heirs. About one who digs
a pit on private ground and opens it into public ground, or vice versa. One
who digs and opens a well and delivers it over to the community is free.
About one who digs a pit on public ground and an ox or an ass falls into it.
Are the vapors therein contained, or is the shock received by the animal, the
cause of death when falling into a pit ? 106-120
MiSHNAS VII. TO IX. When a pit belongs to two partners, and one <*[
them passes by and does not cover it, and so also does the second, the latter
only is liable. About a pit which was ten spans deep and which was con*-
SYNOPSIS OF SUBJECTS. xiii
pleted by another one to be twenty, and still by another one to be thirty
spans deep. Each span of water equals two of dry ground. If one dig a
pit ten spans deep and another widen it toward one direction only, what is
the law ? One who sells his house, the title passes with the delivery of the
keys. If he sells a flock of cattle, title passes with the delivery of the Mash-
khukhith (the forerunning goat kept at the head of the flock as a leader).
If he covered the pit sufficiently to withstand oxen but not camels, and
camels came along and made the cover shaky and then oxen fell therein,
what is the law ? What about the gernion of damage ? About one who
places a stone on the edge of the opening of a pit, and an ox stumbles over
the stone and falls into the pit. About an ox and a man who together push
some other into a pit. There is no difference between an ox and another
animal as regards falling into a pit, to have been kept distant from Mount
Sinai, payment of double, restitution of lost property, unloading, muzzling,
Kilayim, and Sabbath. Nor is there any difference between the above-men-
tioned and a beast or bird. Why in the first commandments is it not writ-
ten "that it may be well with thee," while in the second commandments
it is ? 120-130
CHAPTER VI.
MiSHNAS /. TO ///. If one drive his sheep into a sheep-cot and properly
bolt the gate, but still they manage to come out and do damage, he is free.
There are four things for which one who does them cannot be held respon-
sible before an earthly tribunal, although he will be punished for them by
the Divine court. Is armed robbery, when not committed publicly, still
considered theft as regards the payment of double ? For frightening away
a lion from one's neighbor's field the law awards no compensation. How
does it pay what it damaged ? About one who came before the Exilarch
and complained of another who destroyed one of his trees. One who de-
stroys a young date-tree, whet amount of damage must he pay } There was
a case, and Rabh acted in accordance with R. Meir ; but in his lectures,
however, he declared that the Halakha prevails in accordance with R. Sim-
eon b. Gamaliel (see foot-note). About one who puts up a stack of grain on
another's land without permission. One who started a fire through the
medium of a deaf-mute, etc., 131-142
MiSHNAs IV. TO VIII. The law about one who starts a fire and it con-
sumes wood, stones, or earth. No chastisements come upon the world un-
less there are wicked ones in existence. When pestilence is raging in town,
stay indoors, etc. Why does the verse begin with the damage by one's
property and end with damage done by one's person ? About a fire that
passed over a fence four ells high. If one starts a fire on his own premises,
how far must it pass to make the starter liable ? About one who causes his
neighbor's stack of grain to burn down, and there are vessels therein which
also are burned. If one allowed another to place a stack of wheat and he
covered it with barley, or vice versa, what is the law ? Is it customary
with people to keep pearls in a money-pouch ? The law about a spark that
escapes from under a blacksmith's hammer and does damage, . 142-148
xiv SYNOPSIS OF SUBJECTS.
CHAPTER VII.
MiSHNA /. The payment of double is more rigorous than the payment
of four and five fold. The law about one who stole a lamb, and while in his
possession it grew into a ram, etc. That a change acquires title is both
written and taught. Why did the Scripture say that if he slaughtered and
sold it he must pay four and five fold ? A stolen thing, which the owners
have not resigned hope to regain, cannot be consecrated, etc. The pious man
used to place money in the vineyard on a Sabbatical year, declaring : " All
that is plucked and gathered of this fruit shall be redeemed by this money."
A writ of replevin which does not contain the following directions : " Inves-
tigate, take possession, and retain it for yourself," is invalid, . 149-159
MiSHNAS //. TO V/. About two witnesses who testify that the one stole
an ox or a sheep, and either the same or other witnesses testify that he
slaughtered or sold the same. If he stole from his father. From what time
on is a collusive witness disqualified to give testimony? If two witnesses
testify that a certain person blinded his slave's eye, and thereafter knocked
out one of his teeth, and they also testify that the owner of the slave admit-
ted it, and subsequently the witnesses are found collusive, what must the
collusive witnesses pay ? If two witnesses testify that he stole it, and one
witness, or he himself, testified that he slaughtered or sold it, he pays only
two, but not four and five fold. One who admits that he has incurred the
liability of a fine, and thereafter witnesses appear, what is the law ? About
a confession which is made after the appearance of witnesses, and the dif-
ferent opinions in regard to it. If the thief sells all but one hundredth part
of it or he is a co-owner of it, what is the law ? One who steals an animal
which is lame or blind, or which belongs to a copartnership is liable, but
partners that steal together are free. About one who steals an animal
within the premises of the owner and slaughters or sells it outside of it, or
vice versa. Why did the Scripture treat more rigorously with the thief
than with the robber ? Ponder over the greatness of labor, etc., . 159-174
MiSHNA VIL No tender cattle must be raised in Palestine but in its
forests. A shepherd (who raises tender cattle) that repented, we do not
compel him to sell out all his cattle at once. No tender beasts shall be
raised in Palestine, except dogs, cats, and monkeys. R. A'ha b. Papa said
in the name of R. Hanina b. Papa three things. Upon ten conditions did
Joshua divide the land among the settlers. The ten enactments of Ezra.
No swine is permitted to be raised at any place. Rabbi, the Prince of Pales-
tine, objected to the use of the Syriac language, and insisted that only the
Holy and the Greek languages should be used in Palestine. R. Jose objected
to the use of the Aramean language in Babylon, and insisted that the Holy
and the Persian languages should be used. No dogs shall be kept unless
on a chain. In the towns adjoining the frontier they must be kept on a
chain only in the day time, 174-181
CHAPTER VIII.
MiSHNAS /. AND //. The four items of damage : pain, healing, loss of
time, and disgrace. How so? It happened that an ox lacerated the arm
SYNOPSIS OF SUBJECTS. xv
of a child, and the case came before Rabha, etc. When the damage is paid
for, how should the pain be appraised separately ? Healing. If pus col-
lected by reason of the wound, and the wound broke out again, etc. The
sages say that healing and loss of time go together. If the defendant should
say, •• I will cure you myself, the plaintiff may object," etc. Shall we assume
that the appraisement for the deafness is sufficient, or each of the injuries
must be appraised separately ? (See foot-note.) If one strikes another and
makes him temporarily unfit to labor, what is the law } Disgrace— all those
who sustain injury are looked upon as if they were independent men, etc.
One who causes disgrace to a nude, blind, or sleeping person is liable. If
one causes shame to a sleeping person who subsequently dies while asleep,
what is the law ? Is the reason because of the hurting of his own feelings,
or because of the feelings of his family ? Is a blind person required to per-
form all the commandments ? and what R. Joseph, who was blind, said of
that, 182-193
MiSHNAS ///. TO V. The law is more rigorous in regard to a man than
in regard to an ox, etc. One who assaults his father or mother, but does not
bruise them, and one who wounds another on the Day of Atonement, are
liable to pay all the items of damage. To whom belongs the compensation
received by one's minor daughter for a wound ? About an investment for
a minor and the nature thereof. Is a slave considered a " brother"? The
Halakha prevails that the benefit in case of a woman who sells her right in
the marriage contract belongs to herself ; and if she bought estates therewith,
her husband has nothing even in their income. If one blow into the ear of
another, he pays one sela for the disgrace he caused him. What if one
strikes another with the palm or with the back of his hand on the cheek .?
This is the rule : Rank and station of the- parties are taken into considera-
tion. May a witness be a judge in the same case .? A non-vicious ox that
killed a man and also caused damage to another, must his owner pay for
the damage, besides the payment of the atonement money ? All that was
said concerning disgrace is only for the civil court, as to how much the
plaintiff should receive, but there can be no satisfaction for the injury to the
feelings, for which, if he would even offer all the best rams of the world,
they would not atone, unless he prays the plaintiff for forgiveness. The
origin of a series of sayings by the rabbis as well as by ordinary people. If
one says to another, "Break my pitcher," etc. A money-pouch containing
charity funds was sent to Pumbeditha, and R. Joseph deposited it with a cer-
tain man who did not take good care of it and it was stolen from him, and
R. Joseph held him responsible. What Abayi said to him about it, 193-210
TRACT BABA KAMA (THE FIRST
GATE).
CHAPTER I.
THE FOUR PRINCIPAL TORT-FEASORS ; THE DIFFERENT MODES OF
RESTITUTION ; THE VICIOUS AND NON-VICIOUS ANIMALS ; THE
APPRAISEMENT BEFORE THE COURT.
MISHNA /. : There are four principal causes of tort (ex-
pressly mentioned in the Scripture): the ox; the (uncovered)
excavation ; the mabeh (the pasture of one's cattle in another's
field) ; and the fire. The measure of the damages done by the ox
is different from that of the damages done by the mabeh, and vice
versa ; and that of both, which are animated beings, is not like
that of the damages caused by the fire, virhich is not animated.
And the measure of damages caused by the three last men-
tioned, which are movable, is different from that of the damages
caused by the (uncovered) excavation, which is stationary.
One thing, however, is common to all, and that is, that they
are all likely to do damage, which must be guarded against, and
if damage is done, the one responsible for it must make good
from his best estates.
GEMARA : If the Mishna states that there are " principals "
there must be derivatives. Are those derivatives as their prin-
cipals or not ? Said R. Papa: " Some of them are and some of
them are not" (as explained further on). The rabbis taught:
" It was said of the ox that he has three principals, the horn,
the tooth, and the foot. Of the horn the rabbis taught:
It is written [Ex. xxi. 28] : " If an ox gore,'* and goring is only
with the horn, as it is written [Deut. xxxiii. 17]: "And his
horns are like the horns of reem ; with them shall he push (gore),"
etc. What is the derivative of the horn ? Hurting, biting,
2 THE BABYLONIAN TALMUD.
lying upon,* and kicking; (because they are usually done inten-
tionally, as goring). Why is ** goring" called a principal? Be-
cause it is written [Ex. xxi. 28]: ** If an ox gore ?" Let also
hurting be a principal, because it is written [ibid., ibid. 35]:
" And if a man's ox hurt, " That hurting means goring, as
we have learned in the following Boraitha: " It starts out with
hurting, and it ends with goring, to teach thee that the hurting
mentioned here means goring." Why does the Scripture in
case of a man use the term * * gore, * ' while in the case of an animal
it uses the term " hurt " ? For a man, who is fortunate, f (who
is guarded by his planet) ** gore " is used (because it is certain
that the ox gored him intentionally with all his might to harm
him), but of an animal, which is not fortunate, ** hurt" is used,
and by the way it teaches us that an ox which is vicious toward
a human being is considered vicious toward an animal, which case
is not so in the reverse. But is then " biting" not the deriva-
tive of the ** tooth " ? Nay, the tooth usually derives benefit
by doing the damage (consuming), which is not the case with
biting. Are not lying upon and kicking the derivatives of the
foot (because it cannot be done without bending of the feet) ?
Nay, damage by the foot is of frequent occurrence (because
whenever the animal walks and there is something in the way it
damages it), which is not the case with the above. But to what
does R. Papa refer in stating that the derivatives are not like
their principals ? Shall we assume that he refers to those just
stated ? This cannot be, for they are all of the same nature, as
stated above, and the owner must guard against it, and he must
pay the damage. We must therefore say that there is no dif-
ference between the principal and derivatives of the horn, and R.
Papa's statement refers to the derivative of the foot, in case of
doing damage by digging up gravel with the foot, in which case
only one-half of the amount of the damage must be paid, and
which is Sinaic {i.e.y the restitution is for actual damage and
not as a fine, which is always the case whenever one-half dam-
age is paid). But why is this case called a derivative of the
foot ? (only one-half of the damage is paid, while in the case of
the principal the whole must be paid). It is a derivative in re-
spect that (by the same tradition that if the damage-doing animal
* Spoiling vessels thereby.
f According to the other explanation of Rashi it is because a human being is
provident, i.e. careful, and it is not easy to kill him unless by penetrating his body
with the horns with great force.
TRACT BABA KAMA (THE FIRST GATE). 3
is not of sufficient value to pay the amount of the damage) the
balance must be paid from the best of one's estates, which is only
so in case of damage by the foot. Is the latter part of this then
certain ? Did not Rabha further on (page 33) propound a ques-
tion wherefrom the damages shall be collected ? (This does not
matter.) Rabha was not certain about it, but R. Papa was.
Why, then, is it called a derivative of the foot, even according
to Rabha's theory, who was not certain about it ? To equal it
to the foot in that respect, that it is not liable if the damage
was done on public ground (as damages done by the foot are not
paid unless done on the ground belonging to the party damaged).
** And mabeh,'* etc., ** and fire,** etc. What is meant by
** mabeh* " ? Said Rabh: " It means a man " ; Samuel, how-
ever, said it means the tooth (of the ox). Why does Rabh not
explain it as Samuel ? Because when the Mishna states ** ox,"
it means everything with which an ox can do damage (conse-
quently *' mabeh " must be something else). And what is the
reason of Samuel ? Is Rabh's opinion, then, not correct ? The
Mishna states ox. Said Rabh: ** It states * ox * for the damage
done by the foot, and * mabeh * for that done by the tooth, and
it must be explained as follows: The law of damages done by
the foot, which is of frequent occurrence, cannot be applied to
that of the tooth, which is not of frequent occurrence; on the
other hand, the law of damage done by the tooth, which usually
benefits thereby, cannot be applied to that of the foot, which
derives no benefit."
But what is the matter with the horn ? Why is it left out ?
This is included in the statement, ** And if they do damage, the
one responsible," etc. Why is it not mentioned expressly?
* Modern scholars come to the conclusion that originally the Mishna read l^y^DH,
which means one who started a fire, instead of ny3Dn, which latter word cannot be
found either in the Scripture or in the Mishna elsewhere, and that this latter word
originates from an error on the part of the transcriber in writing an n instead of "V.
And it seems to us that this view of the scholars is correct, for we find in one
Tosephtha plainly the word " Hamabir " instead of*' Hamabeh." We may add to
this that Rabh's explanation, *' It means a man," shows also that " Hamabir" is the
correct word. We have therefore omitted all the citations of the passages to explain
the meaning of the word " Hamabeh," as they are too far-fetched and were probably
added by the expounders of Rabh's statement. Abraham Krochmal, however, main-
tains that in the first Mishna)^oth it was used *' Hamabir," but Rabbi, the editor of
his Mishnayoth, wrote " Hamabeh," for the reason that this word has two meanings
which can be applied to foot and tooth. (See his Notes on the Talmud, Lemberg,
18S1, page 260.)
4 THE BABYLONIAN TALMUD.
The Mishna states only cases of those which are considered
vicious from the very beginning (and must pay the full amount
of damage, as tooth and foot, etc.), but not cases of those which
are not considered vicious from the beginning (as the horn,
which pays the full amount of damages only on the third time
of doing damage). Why does Samuel not concur with Rabh ?
He maintains that it cannot mean a " man," because this latter
is enumerated in a subsequent Mishna: " A vicious ox, and an
ox doing damage on the estate of the party suffering the dam-
age, and the man.'' Why is ** man " not mentioned in the first
part of the Mishna ? Our Mishna treats only of injuries done
by one's property, but not of injuries done by one's person.
Now as to Rabh, is then the " man" not enumerated in the
subsequent Mishna ? (Why, then, state it also in our Mishna ?)
Rabh may say: "It is mentioned in the later Mishna only be-
cause other vicious ones are mentioned therein, and according
to him (who says that * mabeh ' means a man) the statement in
the Mishna, * the law of damages,' etc., must be explained
thus: " The law of damages of an ox differs from that of a man
in that the former pays ' atoning money,' while the latter does
not (if a vicious ox kill a man by goring he pays atoning money,
therefore if only the law of the ox would be stated, that of the
man could not be deduced therefrom, because if a man kill an-
other man unintentionally he is banished; if intentionally he
suffers the death penalty, and pays no atoning money); and the
law of a man differs from that of an ox in that the former is
liable (in case of personal injuries caused to another man, in
addition to the payment of actual damages) to four things (ex-
plained further on), which is not the case with the ox ; the one
thing common to both is that they are likely to do damage,
and one is charged with taking care of them." [Is it then usual
for an ox to do harm ? It means a vicious one. But is it then
usual for a man to do harm ? Yea, when asleep. How is it to
be understood ? It is usual for a man when asleep to contract
and stretch out his limbs, and all that is then in his way he
damages.] But is not the man charged with his own care of
himself ? This can be explained as R. Abbuhu said elsewhere
to one Tana: " Read, 'The man is charged with his own care of
himself ' " ; so also is it to be read in our Mishna (and the state-
ment in the Mishna that one is charged with taking care of them
refers to the others mentioned).
R. Oshiyah taught : There are thirteen principal tort-fea
TRACT BABA KAMA (THE FIRST GATE). 5
sors: the depositary; the one loaning for use; the bailee for
hire ; the bailor for hire ; the actual damage sustained through
the personal injury; the expense incurred in curing the injury ;
the earnings lost through such injury and the shame suffered
(this will be explained in Chapter VIII.), and those four princi-
pals mentioned in our Mishna, which make thirteen. (The de-
positary is liable for arbitrary damage; the one loaning for use
is liable even for an accident ; and the bailee for hire and the
bailor for hire are responsible even for theft and loss, and, mani-
festly, for arbitrary damage ; actual damage means that if one
inflicts an injury on another person he must pay the difference
in value of the person injured; the pain suffered, i.e., so much
as one whose arm, for instance, was to be amputated by an
instrument would pay to be relieved by a drug from such pain
as amputation would cause ; all the others are explained further
on in this volume.) Why did the Tana of our Mishna not
state those nine ? It is correct according to Samuel, because
the Mishna treats only of injuries done by one's property, and
not of injuries by one's person, but according to Rabh (who
says that " mabeh " means a man, and so injuries by one's per-
son are treated of) why does he not state them ? The Mishna
treating of ** a man " means to include all damages done by a
man. And according to R. Oshiyah, are they not included in
the "man" stated in the Mishna? There are two kinds of
damages done by man, viz., those done by him to another man
(which constitute a crime), and those done by him to an ox (in
which case the liability is restricted to civil damages only). If
so, why not state the same thing in regard to an ox ? Let him
state a case where an ox injured a man, and a case where he in-
jured another ox. What question is this ? As to a man there
is a difference between the injury done to a man and that done
to an ox, for in the former he is liable for the four things, and
in the latter case he pays only actual damages (and therefore
both are stated) ; but in the case of an ox, what difference is
there between the injury done by him to a man and that done
by him to an ox ? In both cases he pays only actual damages.
R. Hyya taught: "There are twenty-four principal tort-
feasors, viz., those who pay double [see Ex. xxii. 4] ; those who
pay four or five [ibid. xxi. 37] ; the thief (who confesses his guilt,
in which case he pays only the actual value) and the robber (who
is also a principal because he is mentioned in the Scripture [Lev.
V. 23]; the collusive witness; the one who commits rape (is a
6 THE BABYLONIAN TALMUD.
principal because mentioned in Deut. xxii. 29); the seducer
[mentioned in Ex. xxii. 16]; the slanderer [Deut. xxii. 19]; the
one who defiles heave-offering; the mingler (one who mingles
together heave-offering with ordinary food); the one who brings
a drink-offering (to the idols); (the three latter are not men-
tioned in the Scripture, but still they are principals for they pay
pecuniary damage, and the latter is stated in the Scripture); and
these with those thirteen mentioned above make twenty-four.
But why does R. Oshiyah not enumerate these mentioned
here ? He enumerates only those who pay actual damages, but
not those who pay in form of a fine. If so, why does he not
enumerate the thief and the robber who pay actual damages
(as explained above) ? He does so, for he states the depositary
and the one loaning for use (in the case of the depositary it very
often occurs that he sets up as a defence that it was stolen from
him, and we have learned elsewhere that if one sets up a defence
of theft or robbery he is responsible as a thief and robber). And
as to R. Hyya, does it not state the depositary and the one loan-
ing for use ? He states separately property which came laivfully
into his possession (as in the case of the depositary, etc.), and
property which came unlawfully into his possession (as the
thief).
It is correct according to the Tana of our Mishna, who states
"principals" because there are also derivatives (which were
enumerated above), but according to R. Hyya and R. Oshiyah
if they state " principals" there must be derivatives; what are
they ? Said R. Abbuhu : They are all as principals in that re-
spect that the damage must be paid from the best estates.
What is the reason ? It is deduced by an analogy of expres-
sion; in all those cases either the word "for" or " give" or
" pay" or " money" is written. (Where it is written " for"
we deduce it by analogy from the " for " stated as to the vicious
ox, as there it is from the best estates (which in turn is deduced
from the tooth and foot) ; so also it is here, if" give " or" pay "
is written we deduce it from the ox that gored a slave where
these words are written; if " money" is written we deduce it
from the pit where the same word is written ; and in all those
cases it is paid from the best estates.)
* ' The law of the damage done by an ox is not like that, ' ' etc.
For what purpose does he mention this here at all ? Said R.
Zbid in the name of Rabha: " He means to say with that, that
no question should be raised why the Scripture does not state
TRACT BABA KAMA (THE FIRST GATE). 7
one of the tort-feasors and leave the others to be deduced (by
way of analogy) therefrom, for one cannot be deduced from the
other (as it is stated above ; Rabh according to his theory and
Samuel according to his).
''And that of both which are animated^'" etc. For what pur-
pose does the Tana mention this ? Said R. Mesharshia in the
name of Rabha: " He means to say that it should not be ques-
tioned why the Scripture does not state two of the tort-feasors
(the ox and the mabeh), and fire would be deduced from these
two ; for this one cannot be deduced from those two (for the
one is not like the others, etc., as stated in the Mishna). Said
Rabha : " If any one of these should be mentioned with the * pit, *
all others could be deduced from those two by reason of having
something common to all (as e.g., if he would state the pit and
the horn, the tooth could be deduced thus: the pit, the nature
of which is not to move and do damage, must pay; the more so
the tooth, the nature of which is to do so; and if you should
say the pit is made from the very beginning to do damage,
which is not so with the tooth, I will cite you the horn (which
is not made so) ; and if you will say that the horn does the dam-
age intentionally, I will cite you the pit and the conclusion will
return (the former argument will be reinstated); the one thing
common to all is that it is their nature to do damage, and one
is charged with taking care of them, etc. I will also bring in
the tooth. In such a way I would also deduce the foot, if the
pit and the horn should be stated ; and if it should be objected
that the pit is from the beginning made to do damage, which
is not so with the foot, the horn would be cited ; and if it should
be objected to on the ground that the horn does damage inten-
tionally, the pit would be cited. And so forth as to all, with
the exception of the horn, for the objection might be raised that
they are all considered vicious from the beginning (which is not
so with the horn). For what purpose, then, did the Scripture
enumerate all of them ? To teach their different peculiarities;
viz., the horn — to distinguish between a vicious and a non-vicious
one; the tooth and foot — to exempt them from liability if the
damage was done on public ground (for it is written, Ex. xxii. 4,
" and they feed in another man's field," but not on public
ground); the pit — to exempt it from liability if vessels fell into
it (and were damaged) ; the man — to make him liable to pay for
the four things (which is not so in the case of the others) ; fire — •
to exempt it from liability if it consumed concealed articles (as
8 THE BABYLONIAN TALMUD.
e.g.^ if articles were concealed in a stack of grain, in which case
the liability is only for the grain, but not for the articles).
" The one thing common to them all,'' etc. What does this
mean to include ? (As from the statement it seems to include
all other things the nature of which is to do damage, and one is
charged with taking care of them, what other such things can
there be ?) Said Rabhina: " It means to include that which we
have learned in the following Mishna: ' If notice be given to
one to remove (within a certain time usually given by a Beth
Din) a wall, or to cut a certain tree, (and he failing so to do
within such time) they fall, he is liable.' " How is the case ?
If he renounced his ownership of them, then according to both
Rabh and Samuel it is like the case of the pit ; as a pit because
it does often damage one must take care of it, so also is the case
here.* If he has not renounced ownership, then, according to
Samuel who says that they are all deduced from the pit, are
they the same as the pit ? Nay, the case is that he has renounced
ownership, but lest one say that they are not like the pit which
is originally made to do damage, which is not the case with the
above things (the building of a wall or the planting of a tree),
then the case of the ox proves that ; and lest one say that the
ox is different because of its usual way of doing damage with its
feet, then again the case of the pit may prove and so the con-
clusion will return (and the original argument is reinstated).
" To pay the damages^' The rabbis taught: It is written
[Ex. xxii. 4]: " With the best of his own field, and with the
best of his own vineyard shall he make restitution." That
means the best field and the best vineyard of the plaintiff (e.g.y
if A's ox grazed upon a parcel of land belonging to B, the best
land of B is taken as a standard, and A must pay an amount of
damages equal to the difference in value of such a parcel of land
before and after having been grazed upon). Such is the dictum
of R. Ishmael; R. Aqiba, however, said: " The passage intends
to state only that damages are collected from the best estates
of the defendant (i.e., the parcel of land of the plaintiff is ap-
praised, and if the defendant wishes to pay in land he must do
so with land of his own best estates), and so much the more in
case of damages to consecrated articles. Is it possible that ac-
* This is no contradiction of what was stated above, that a pit does not do
damage often, for it means that it does not do so as often as the foot, which treads
on everything in its way.
TRACT BABA KAMA (THE FIRST GATE). 9
cording to R. Ishmael restitution must be made with the best
land even if land of an inferior quality be damaged ? Said R.
A'ha bar Jacob: "The case treated of here is that the best
land of the plaintiff was of the same quality as the worst land
of the defendant, and they differ on this point. R. Ishmael
holds that the land of the plaintiff is taken as a standard,
and the passage stating that he shall pay from the best
estates, means from the best estates of the plaintiff, and R.
Aqiba holds that that of the defendant is taken as a standard
for best."
What is the reason of R. Ishmael's statement ? The word
" field" is written below (with the best of his ov^n field) and
also above (and they feed in another ma.ns field) (ibid., ibid.);
as above it has reference to the land of the plaintiff, so also in
the statement below (and the passage is to be expounded thus :
When the defendant has land which equals the best of the
plaintiff's, he must pay out of such land the amount of the dam-
age). And R. Aqiba ? He may say, it is written: " With the
best of his own fields, etc., he shall make restitution." That
means not that of the plaintiff (and no deduction by analogy is
admissible when the statement is so plain). R. Ishmael, how-
ever, may say: In this case we must derive the benefit of both
the analogy of expression and the passages ; the analogy of ex-
pression as I have explained, and the benefit from the passage
I derive for explaining that it refers to a case where the defendant
has both best and worst land, and the plaintiff has only best
land, and the worst land of the defendant is inferior to the best
of the plaintiff, in which case he cannot say to the plaintiff,
collect your damages from my worst (because the passage
gives the benefit to the plaintiff to be paid from the best),
and therefore he must make restitution from his own 3est
estates.
Abayi propounded the contradiction of the following pas-
sages to Rabha: It is written [ibid., ibid.]: "With the best oi
his own fields," etc., which means from the best estates only
and with nothing else, and we have learned in another Boraitha :
" It is written [Ex. xxi. 34]: * And to return money (make
restitution) ' ; means this to include equivalents of money, even
bran ? " (Rabha answered): This presents no difficulty. When
he returns of his own will he may give even bran, but if through
the court he pays from the best estates. Said Ula, the son of
R. Ilai: " The wording of the passage seems to lead to the same
lo THE BABYLONIAN TALMUD.
conclusion, for it is written * shall he make restitution,* which
signifies involuntarily.'' Said Abayi to him : " Is it then written
'restitution shall be made*?" (which would mean involun-
tarily). It is written " he shall make," etc., which can also
mean voluntarily. When R. Papa and R. Huna, the son of R.
Jehoshua, returned from the college they explained the above
passage as follows: "Anything (of personal property) is con-
sidered as the best of estates, for if he cannot sell it (at a
reasonable price) at one place, he can take it to another place
(and therefore if he makes restitution with personal property he
may do so even with bran); except (if he makes restitution with)
land, he must do so only with the best estates in order to enable
him to procure a buyer.*'
R. Samuel bar Abba of Akkrunia propounded the following
question to R. Abba : When the standard (as to which are the
best and which are the worst lands) is taken, is it taken of those
lands of his own, or of those of the public in general ? {i.e., has
the defendant to make restitution out of his own best estates,
and if his worst lands are as good as the best of the public in
general, must he nevertheless pay out of his own best, or if his
worst lands are as good as those of the public in general, may he
make restitution out of his worst lands ? — for they are as good as
those of the public in general). According to R. Ishmael this
is no question, for he says that those of the defendant are taken
as a standard (and therefore if his worst are as good as those of
the plaintiff he pays out of his worst estates), but the question
is only according to R. Aqiba, who holds that those of the de-
fendant are to be taken as a standard. How is it ? Shall we
assume that the passage ** the best of his own fields ** means to
exclude the lands of the plaintiff, or it means to exclude the
lands of the public in general? And he answered him: The
Scripture states expressly *' of his ow7i land," and you ask
whether the land of the public in general is taken as a stand-
ard ? R. Samuel objected : We have learned (in case there
ar^ to be collected a woman's claim under her marriage contract
[Kethubah], damages, and other debts): If one has only good
lands, all the claims are collected from the good lands ; if he has
only medium lands, all are collected from those lands ; if only
poor-quality lands, all are collected from those lands ; if he has all
the three, damages are collected from the good ; ordinary cred-
itors collect from the medium ; the Kethubah is collected from
the poor-quality lands ; if he has good and medium land only,
TRACT BABA KAMA (THE FIRST GATE). ii
damages are collected from the good ; ordinary debts and the
claim of his wife are collected from the medium lands ; if he
has medium and poor-quality lands only, damages and ordinary
debts from the medium and the wife's claim from the poor-
quality lands ; if he has only good and poor land, damages from
the good and the other two from the poor-quality land. Now,
we see that the middle part of this Boraitha states ** that if he
had medium and poor land, damages and ordinary debts are col-
lected from the medium and the other two from the poor land,"
and if it is as you say, that his own lands are taken as a stand-
ard, let the medium he has be considered the best (as they are
his best), and the creditors shall be referred to the poor lands ?
Therefore said Rabhina : They differ as to the statement of Ula.
For Ula said: ** According to the Scripture the creditors are
paid out of the poorest, for it is written [Deut. xxiv. ii]: *In
the street shalt thou stand, and the man to whom thou dost lend
shall bring out unto thee the pledge into the street.* Now if
it depends on the will of the debtor, he usually brings out the
poorest article he possesses as a pledge ; but why have the sages
enacted that creditors shall be paid out of the medium ? In
order not to close the door to the borrowers." The one master
holds of Ula*s enactment, the other one does not (but adheres
strictly to the meaning of the passage).
The rabbis taught: ** (One who had to pay damages, ordi-
nary debts, and the wife's claim), if he convey all his estates (the
good, medium, and poor) to one person, or to three different
persons at the same time, they pass to the grantees subject to
the same liabilities as if in the hands of the grantors {i.e,, the
one who bought the good pays off the damages, the one who
bought the medium pays off the creditors, etc.). If at different
times, all are paid from the estate sold last (for the buyers of
the prior estates may each say: When I bought my land there
were other lands from which to pay). If this estate is not suffi-
cient, the last but one is resorted to ; if still insufficient, the last
but two is resorted to." How is the case, if he conveyed to
one person ? Shall we assume that he conveyed them by one
deed, then surely they pass subject to the original liability, for
even if he sold them to three persons, in which case one must
have priority, you say that they pass subject to such liabili-
ties, still more so if he sold to one ? (what was the necessity of
stating it ?) Therefore we must say that it means that they
were conveyed one after another (on three different days), and
12 THE BABYLONIAN TALMUD.
why docs he state three? To teach that although each one of
them may say: " I left room enough for payment," the same
thing may be said even if sold to one. He will say on each
parcel of land : When I bought this parcel of land there were
other parcels out of which to pay. The case here is that the
good lands were the last to be sold (in which case it is more ad-
vantageous for him to let them collect according to their rights
than to advance the argument that he left room for payment).
So also said R. Shesheth. If so, shall they all collect of the
good lands? (for at the time the first two estates were sold all the
liability shifted over to the best lands). The grantee may tell
them: " If you will be quiet and collect according to your orig-
inal rights well and good, but if not I will return the deed for the
sale of the poor land to the grantor (and then the liability will
shift over to those lands, for no claims are collected from con-
veyed lands when there are free lands), and all of you will have
to collect your claims from the poor land."
It is certain that when the grantee conveyed the medium and
the poor lands, and left the best for himself, that they all collected
their claims from the best lands, for those were the only ones
which remained, and the others were no more in his possession so
that he could refer to them saying, " I do not care for the enact-
ment of the sages (for my benefit) " ; but in case he conveyed the
good land and left for himself the medium and the poor, how is
it? (shall the claims be collected from the second grantee because
he took his lands subject to the liability? and from the first
grantee they cannot collect, for he can say he accepts the enact-
ment of the sages, and the good estates which were at the time
of the first conveyance free were subject to the liability for pay-
ment of the claims ?). Abayi intended to decide that all collect
from the best estates. Said Rabha to him: " Did not the first
grantee convey to the second grantee all his rights and interests
he may have in them ? And now, if they would come to the
first grantee, they could collect from the medium lands only, and
although at the time the medium and poor lands were conveyed
the good ones were still free, he could say, " I do not want to
avail myself of the enactment of the sages " ; so also the second
grantee can tell them : " Collect your claims from the medium and
poor lands," for when the second grantee bought the estates he
did so with the intention to acquire all the rights and interest
the first grantee had at the time. R. Huna, however, said: (The
above passages, one mentioning " money " and the other " the
TRACT BABA KAMA (THE FIRST GATE). 13
best estates," do not contradict each other), it means either
money or best estates.*
R. Assi, however, said: " Money is as good as land." For
what purpose is this statement ? If for the purpose that it is
considered the " best " {i.e.y although he has good land he may
pay in money), then it is the same that R. Huna stated, and it
would be sufficient to say " and so also said R. Assi." Shall we
assume that it is for the purpose of teaching as in the case of two
brothers who have divided up land between themselves, and sub-
sequently a creditor (of their father) comes and levies upon the
share of one of them (that the other may pay his share of con-
tribution either in land or in money) ? Did not R. Assi already
state this case? For it was taught: "Two brothers parti-
tioned their estates and subsequently a creditor came and levied
upon the share of one of them ; Rabh said the partition is thereby
annulled (and a new partition must take place of the lands which
remained), because he holds that brothers in such a case are as
heirs. Samuel, however, said that it is valid, because he holds
it is as an ordinary sale and as one who buys without a responsi-
bility. R. Assi says he (the other brother) must pay his share
of one-fourth in land and one-fourth in money, for he was in
doubt whether they are considered as heirs, and he must con-
tribute his share in land and not in money, or as an ordinary
sale with responsibility, and he must pay to him what he lost,
but in money, and therefore he must pay one-fourth in money
and one-fourth in land), therefore he must pay one-fourth in land
and one-fourth in money. But what is meant by the state-
ment " it is as good as land " ? that it is considered " best " ?
then it is again the same statement made by R. Huna ? Say:
** And so also said R. Assi."
R. Zera in the name of R. Huna said: In case one does a
meritorious thing he shall do it up to one-third. What does
this mean ? Shall we assume that it means up to one-third of
his own property ? If so, then if he has occasion to perform
three meritorious things he must spend his whole property?
Said R. Zera: It means up to one-third in endeavoring to adorn
the meritorious thing {e.g., if there are two scrolls of Law, and
one is more expensive than the other, he shall spend one-third
more to buy the more expensive one). R. Assi questioned:
* The reason why this was not stated till now is that there should be no inter-
ruption in the discussion of R. Ishmael and R. Aqiba.
14 THE BABYLONIAN TALMUD.
Does it mean one-third of the cheaper one, or does it mean
one-third should be added? This question remains unanswered.
In the West it was said in the name of R. Zera: Up to one-
third he shall spend from his own (without expectation to be
rewarded in this world), thenceforward from the Holy One's,
blessed be He {i.e., that part will be repaid to him in this world).
MISHNA //. : (The following is the rule :) In all that which I
am charged with taking care of I have prepared the damage {i.e.,
if damage was done it is considered that I was instrumental in
doing it). If I prepare only a part of the damage I am responsi-
ble nevertheless for the whole, as if I prepared the whole. And
only as to property which cannot be desecrated (but for that
which is desecrated there is no responsibility), or property of
persons governed by laws adopted by their community,* or such
that has an owner, and at any place (the damage was done), ex-
cept if done on the ground exclusively belonging to the defend-
ant, or on that belonging to both together, the defendant and
the plaintiff. If damage was done, the defendant must complete
the payment of the damages with the best of his estates.
GEMARA: The rabbis taught: "In all that which I am
charged with taking care of," etc. How so? If one intrusts
a deaf man, a fool, or a minor with the charge over a pit, or
an ox, and they cause damage he must pay for such damage,
which is not so in case of fire (explained further on). What
case is treated of here ? when the ox was kept on a rope, or the
pit was covered, equivalent to which in case of fire is as if it were
live coals; and if you should ask why there should be a differ-
ence (between the former and the latter), (it may be said) in
the case of the ox he is likely to get loosened, and in the case
of a pit the cover is likely to slip off (and therefore the owner
should have that in mind and bestow better care), but in the
case of coal it is the reverse, for it is likely to get more and
more extinguished. But according to R. Johanan, who said
(elsewhere) that if one intrusts even a flame (to those stated
above) he is also free (and consequently the statement above,
" which is not so in case of fire," must be explained as meaning
a flame), and in such a case the equivalent thereof here would
be a loosened ox and an uncovered pit. Why should there be a
* This seems to be the true meaning of the expression " Bene Brith," and not, as
some thought, that it means Israelites. See our introduction to this edition in our
" History of the Talmud."
TRACT BABA KAMA (THE FIRST GATE). 15
difference ? There (in case of fire) the deaf man has so closely
connected himself with the fire {i.e.y if he would not move it, it
would remain stationary), that it is considered that he himself
has done the damage (this is according to Rashi's second ex-
planation, and it is stated elsewhere that if a deaf man, etc., do
damage there is no liability), but here it is not so (for the ox or
the pit did the damage without the aid of those mentioned).
The rabbis taught : There is a more rigorous rule in the case
of the ox than in the cases of the pit and the fire, and vice versa.
(How so ?) The rigorousness of the rule in case of the ox is
that he (the owner) pays the atoning money (when the ox kills
a free man, and 30 shekels if a slave) which is not so in the case
of the pit and fire. The rigorousness of the rule in the cases of
the pit and the fire is that the pit is originally made to do dam-
age, and the fire is considered ** noxious from the beginning,"
which is not so in case of the ox. There is a more rigorous rule
in the case of fire than in the case of the pit, and vice versa. The
rigorousness of the rule in case of the pit, which is made origi-
nally to do damage, lies in that one is responsible if he intrusted
it to a deaf man, minor, or fool, which is not so in case of fire,
and the more rigorousness is in the case of fire, which has in
its nature to move and to do damage, and is considered nox-
ious in that it consumes everything whether fit or unfit for it,
which is not so in the case of the pit. Let him also teach that
the case of the ox is more rigorous because he is liable for
damages to vessels (by breaking them intentionally either with
the horn or with the foot), which is not so with the pit. The
Tana enumerates some and leaves out others. Is then anything
else left out that also this is left out ? Yea, the case of con-
cealed articles {e.g., if an ox has kicked upon a sack containing
vessels, or an ox carrying a sack containing vessels fell into a
pit and the vessels broke, the owner is responsible for the ves-
sels, which is not so in case of fire).
'* If I have prepared a part of the damage, ' ' etc. The rabbis
taught; " How so ? If one dug a pit nine spans deep and an-
other one came and completed it to be ten spans deep, the
latter is responsible (whether the ox falling into it was killed or
only injured). Shall we assume that this is not according to
Rabbi (who said further on that for damages both are liable) ?
Said R. Papa : The case is that the ox that fell in was killed (in
which case Rabbi also agrees that the one who dug the last span
must pay). R. Zera opposed : Is this the only case — is it not
i6 THE BABYLONIAN TALMUD.
the same if one left his ox in charge of five persons, and one
of them left intentionally and the ox caused damage — is the
one who left responsible ? And R. Shesheth also opposed, say-
ing that there is another case when one added fuel to a burning
fire, and the latter caused damage ; the last one is responsible,
and R. Papa himself opposed, saying there is also another case
of the following Boraitha when five persons sit on a bench, and
it does not break, and another one comes and sits down and it
breaks, the last one is responsible (for the whole damage) ; and
he himself explained it as it had been. Papa bar Abba (who was
a heavy-weight man). Now, let us then see ; in all those three
cases how is it to be understood ? If without the last one no
damage would have been caused, then is it self-evident that he
is responsible ? And if even without him damage would have
been caused, then what has he done that makes him liable ?
(and therefore these illustrations cannot be cited, because in the
case of the pit the one who dug it nine spans can say to the
other : If you had not dug the tenth span the animal would not
have been killed (as there is a tradition that a pit less than ten
spans deep cannot kill), but only injured, and I would have had
to pay only for the injury, but not for the whole animal). But
finally how is this Boraitha, after all, to be explained ? (for the
former two cases which are not Boraithas we do not care). It
can be said that if he would not have sat down it would have
not broken before the lapse of two hours, and he hastened it to
break in one hour, in which case the first five can say to the last
one: " If not for you, we would have remained sitting a little
longer, and would have left (and the bench would not have
broken)." But why should he not reverse the argument and
say: " If you were not with me on the bench, it would not
have broken at all ?" The case is that it broke while he was
leaning on them. What is the difference ? Lest one should say
that, as he caused the damage only by his strength (leaning)
and not by sitting down, he should not be liable, he comes
to teach us that one's strength is equivalent to one's weight
of body.
' * / am responsible to pay the whole damage. ' ' It does not
state " I am responsible for the damage," but " I am responsi-
ble to complete the compensation for the damage"; this is a
support to what was taught by the rabbis: "The completion
of the compensation for the damage." This is to teach that the
plaintiff must trouble himself with the disposal of the carcass.
TRACT BABA KAMA (THE FIRST GATE). 17
Whence do we deduce it ? Said R. Ami : It is written [Lev,
xxiv. 21]: " And he that killeth a beast shall make restitution
for it " (yeshalmenah). Do not read " yeshalmenah," but read
" yashlimenah," he shall complete her {i.e., the plaintiff shall
take the final trouble of disposing of it by sale and the defendant
shall pay the balance of the damage). Hezkyah says, it can be
deduced from the following passage [Ex. xxi. 34]: "And the
dead beast shall be his," which signifies it shall be that of the
plaintiff. So it was explained by the disciples of Hezkyah.
" Thou sayest it belongs to the plaintiff " ; perhaps the passage
means that it belongs to the defendant ? It was said: " It was
not so." What does that mean ? Said Abayi : If thou shouldst
think that the carcass belongs to the defendant, it should have
been written " an ox for an ox " [ibid., ibid.], and no more (and
I would know that the defendant can have the carcass) ; why the
addition of the above passage ? Infer here from that the pas-
sage means that it shall remain the plaintiff's. Said R. Kahana
to Rabh : Is that so, that without the addition of that passage
it could be thought that it belongs to the defendant ? Where is
the common sense ? Since if he (the defendant) has a number
of carcasses he may give them to the other party (in payment of
the damages), for the master said above: It is written [ibid.]
" He shall * return' ; that includes equivalents of money, and
even bran." The more so the carcass in question, which is his
own ? This statement (as to who has to trouble himself with
the disposal of the carcass) was necessary as to the loss in value
of the carcass (i.e., that from the time the animal was killed its
owner is charged with its disposal, and if through his negligence
it was not disposed of, and there resulted a loss in value, that
loss is charged to the plaintiff).
Shall we assume that the Tanaim of the following Boraitha
differ as to this case ? It is written [ibid. xxii. 12]: " If it be
torn in pieces let him bring it in evidence that it happened so
by accident, and he will not be liable" (for a bailee for hire is
not responsible for accident). Abba Saul, however, says it
means he shall bring the carcass into court (to be appraised).
May we not suppose that they differ thus (for we cannot sup-
pose that they differ in case it was done by accident, for even
Abba Saul must concede that a bailee for hire is not responsible
in such a case, but they probably differ in a case where the bailee
is liable) : One holds that the loss in value is chargeable to the
plaintiff, and the other holds that it is chargeable to the defend-
i8 THE BABYLONIAN TALMUD.
ant ? Nay, both agree that it is chargeable to the plaintiff, but
they differ as to the trouble of transportation of the carcass.
As we have learned in the following Boraitha : The anony-
mous teachers say: Whence do we deduce that the owner of
the pit has to bring up the killed ox from the pit (at his ex-
pense) ? It is written [ibid. xxi. 34J : " He shall make restitu-
tion in money unto the owner thereof; and the dead " {i.e., he
must give also the carcass, which cannot be done unless brought
up from the pit). Said Abayi to Rabha: " How is this case of
transportation of the carcass ? Shall we assume that when in
the pit it is worth one Zuz and when on the brink thereof it is
worth four ? Then this trouble is for his own benefit ? Why
the passages ?" He answered him: ** The case is that it is in
either case not worth more than one Zuz" (and even then he
must bring it up). But can there ever happen such a case ?
Yea, as people usually say: ** A beam in the forest is worth one
Zuz, and the same, although in the city, is also only of same
value."
Samuel said: " (It is the custom of the courts that) no ap-
praisement is made for a thief or robber {i.e., if one stole an
article, etc., and the same was broken, he does not return the
broken parts and pay the difference in value, but must return
good articles), but only in case of damages. And I, however,
add also the borrower, and Aba (Rabh) agrees with me."
It was taught: Ula said in the name of R. Elazar: An ap-
praisement is made for a thief and a robber. R. Papi, however,
said : No appraisement is made. And the Halakha prevails that
no appraisement is made for a thief and robber; but for a bor-
rower, however, it may be made, according to R. Kahana and
R. Assi. Ula said again in the name of R. Elazar: " A first-
born (of a man) which was killed by an animal within the thirty
days need not be redeemed." So also has Rami bar Hama
taught: Because it is written [Numb, xviii. 15] "thou shalt
redeem " one might think that this were so even if it were killed
within the thirty days; therefore it is written [ibid., ibid.] " ne-
vertheless " * to distinguish (that in case it was killed it need not).
The same said again in the name of the same authority:
** Of brothers who have divided up (their estates of inheritance),
that wearing apparel which they have on is appraised, but that
which their sons and daughters have on is not appraised, because
* According to Leaser's translation.
TRACT BABA KAMA (THE FIRST GATE). 19
.they have no case in court, and therefore we do not trouble them
to come." Said R. Papa: " Sometimes, however, even what they
have on is also not appraised ; this may be the case if the eldest
brother was the manager of the estates, and he was dressed in
better clothes for business purposes."
The same said again in the name of the same authority:
** The Halakha prevails that debts are collected from slaves (be-
cause they are considered as real property). Said R. Na'hman
to Ula: Did R. Elazar say so even when the slaves fall inheri-
tance to orphans ? Nay, only from him. From him ? Would
you say even from the only garment he has on ? The case here
is that he has hypothecated the slave, as Rabha said: ** If one
hypothecates his slave and thereafter sells him, the creditors
nevertheless replevy the slave. If he has, however, hypothe-
cated his ox, and thereafter sold him, the creditor cannot re-
plevy him. Why so ? Because when a slave is hypothecated
people talk about it, and therefore the vendee is charged with
notice, which is not the case with an ox." After R. Na'hman
left, Ula said to those present: ** So said R. Elazar: ' Even
from the orphans (for a slave is as real estate).* " Said R. Na'h-
man (when he heard of this): ** Ula avoided me (to state that
in my presence, for fear I would cut him off with numerous
objections)." Such a case happened in Nahardea and her judges
collected a debt (from the slaves which fell an inheritance to
orphans). In Pumbeditha such a case happened, and R. Hana
bar Bizna collected it. Said R. Na'hman to them: " Go and
return it, and if not I will collect it from your property." Said
Rabha to R. Na'hman: " Ula, R. Elazar, the Judges of Nahar-
dea, and R. Hana bar Bizna are all your opponents; according
to whom then is your decision ? " He answered: " I know a Bo-
raitha, which was taught by Abimi: **A premonition {Tcpeo^oXrj)
is effective as to land, but not as to slaves; personal property
passes with land (if personal property is sold with land, and
only the land is taken possession of, the personal property also
passes), but not with slaves." (Hence we see that slaves are
considered personal property.) Shall we assume that the Ta-
naim of the following Boraithas differ as to this case: If one sold
slaves and land, and the vendee took possession of the slaves, the
land does not pass. The same is the case if vice versa. Land
and personal property, if the vendee took possession of the land,
the personal property passes, but not vice versa. Slaves and
personal property do not pass, unless the vendee takes posses-
20 THE BABYLONIAN TALMUD.
sion of both of them, as one does not pass with the other. In
another Boraitha it was taught that if one takes possession of
the slaves the personal property sold therewith passes. Shall
we not assume that they differ in this : One holds that slaves are
considered real, and the other holds that they are personal prop-
erty ? Said R. Ika, the son of R. Ami : ' ' Nay, all agree that a
slave is personal property, and that Boraitha which states that
it does not pass is correct, and that Boraitha that states that it
does pass, treats of a case where the clothes which are on the
body of the slave were sold." [And even when so, what of
it ? Is this then not considered a moving court, and with a
moving court (personal property) does not pass ? And if you
should say that he was then not moving, did not Rabha say
(Baba Metzia, Chap. I.) that if it does not pass when moving, it
does not do so also when standing or sitting ?] The Halakha
prevails that it passes only when the slave is tied and cannot
move.
But have we not learned in another Boraitha that if he takes
possession of the land the slaves also pass ? There is the case
that the slaves are standing upon it. Would you say that the
Boraitha which states that they do not pass means that they do
not stand upon it ? This would be correct according to the one
who says that slaves are considered personal property, and there-
fore if they stand upon it they do, and if not they do not pass ;
but according to the one who says that slaves are as real property,
why is it necessary that they should stand upon it ? Did not
Samuel say that if one convey to another ten different parcels
of land located in as many different states, the taking possession
of one of them acquires title to all ? (Says the Gemara: What
a question is this ?) Even according to the opinion of him who
says that slaves are considered personal estates, why is it needed
that they should stand upon it ? Have we not the tradition that
if personal property be sold with real property, the former need
not be upon the latter when possession is taken of the latter ?
What answer can you give to this, that there is a difference be-
tween personal estates that are movable and those that are not ?
Say the same thing here : There is a difference between movable
and immovable real estate. Slaves are considered movable real
estate, the body of the earth is one wherever it is (consequently
all his lands are attached to each other).
*' Property which cannot be desecrated,'' etc. R. Abba said:
" An ox intended to be sacrificed as a peace-offering, which has
TRACT BABA KAMA (THE FIRST GATE). 21
done damage, the (half) damage is paid out of his meat, but not
out of those pieces prepared for the altar." Is that not self-
evident, for those pieces are for the Lord ? It means to teach
that the value of the half of these pieces is not collected from
the other half of the flesh {e.g.^ a non-vicious ox consecrated
for a peace-offering, of the value of two hundred Zuz when
slaughtered, that has killed another ox of the same value when
alive, in which case according to law he must pay the damage
out of half of his body. Now the pieces being burnt the value
of the half body is diminished, nevertheless the amount dimin-
ished cannot be collected from the other half of the body).
According to whom is this ? According to the rabbis, (who
hold in case one ox has pushed another ox into a pit) that only
the owner of the ox has to pay, but not the owner of the pit
(although it is not sufficient); then this is self-evident. If it is
according to R. Nathan, who in the above case holds that the
owner of the pit must complete it, why should in this case the
parts sacrificed be exempt ? This can be according to both
R. Nathan and the rabbis; according to the rabbis, because
we might say that the rabbis held so only where there are two
distinct elements (the ox and the pit), but in this case where
there is only one body, the plaintiff may say : I will collect my
damage from any part I wish. And according to R. Nathan :
In that case the owner of the ox may say to the owner of the
pit : I found the ox in thy pit ; whatever I cannot collect from
that party, I will collect from thee. But in the case herein can
he then say the flesh has done the damage, but not those pieces
in question ? (Hence the statement.)
''And that property that has owners. ' ' What does this mean
to exclude ? We have learned in a Boraitha, this means to ex-
clude ownerless property. How is the case ? If our ox gore
an ownerless ox, who claims damages ? If the reverse is the
case, let him go and take the ox ? The case is that (after he has
done the damage) he was appropriated by some one. Rabhina
said: " This means to exclude the case where he first did the
damage, and then was consecrated by his owner, or declared
ownerless (by driving him out)." So also we have learned
in a Boraitha: " Further than that said R. Jehudah: Even if he
damaged and then was consecrated, or his owner declared him
ownerless he is exempt, as it is written [Ex. xxi. 29], ' and warn-
ing have been given to his owner, and he killeth a man or a
woman,* etc., which signifies that during the killing, the bring-
22 THE BABYLONIAN TALMUD.
ing of the suit and the making of the award there shall be one
and the same owner."
' * Except on the property of the defendant. * ' For he can say
to him: " What has your ox to do on my premises ? **
'* And on the property of both the defendant and the plaintiff .''
Said R. Hisda in the name of Abimi: In a partnership court
one partner is liable to the other partner for damages done by
the tooth and foot, and our Mishna is to be explained thus:
** Except on property exclusively belonging to the defendant,
where he is free, but on premises belonging to both the defendant
and the plaintiff, if damage is done, the one doing it is liable."
R. Elazar, however, makes them free and explains the Mishna that
there is no liability for foot and tooth when it belongs to the
plaintiff or to both the defendant and the plaintiff, and what is
stated further on of one's liability refers to damage done by the
horn, because partnership property is for that purpose considered
a public ground. It is right according to Samuel (ante, p. 5),
but according to Rabh, who says that the expression " ox " in the
Mishna includes everything in relation thereto, what does this
mean to include ? It means to include that which the rabbis
taught: ** If damage is done the defendant is responsible."
This means to include the depositary, the loan for use, the loan
for hire, and the bailor for hire ; if an animal has done damage
on their ground, a non-vicious ox pays half and a vicious ox
pays the full amount of damages. If the enclosure wall in good
condition broke in in the night time, or it was broken in by
burglars and (the animal) went out and has done damage, there
is no liability." How was the case ? Shall we assume that
the ox of the bailor for hire has injured the ox of the bailee, let
the bailor say to the bailee : If he should damage some stranger's
property you would have to pay (because you are charged with
taking care of him); why should I pay you when he has injured
your ox ? And if the reverse were the case (and still it is said
that only one-half is paid), let the owner say to the bailee : If he
were injured by an ox of a third person would you not have to
pay me the full amount of damage ? (because in the case of a
loan for use he is liable for damages occurring by accident), now
whenj^wr own ox has caused the injury you want to pay me
only one-half ? The case is that the ox of the bailor has injured
the ox of the bailee, and the objection just stated can be ex-
plained that the bailee has agreed to take care that the ox shall
not he injured, but not that he shall do no injury to others.
TRACT BABA KAMA (THE FIRST GATE). 23
If so, how will be explained the later part which states that if
the wall was broken in in the night-time, or the same was broken
in by burglars, and the animal went out and did damage, he is
free, from which is to be inferred that if in the daytime there
is liability. Why should it be so? Did he then warrant against his
injury to others? The Boraitha meant thus: If he has war-
ranted against his injury to others he is liable only in the day-
time, but not if in the night-time or by accident. Is that so ?
Has not R. Joseph taught: " In a partnership court and an inn,
one is liable for damages done by the tooth and the foot ? " Is
this not contrary to the statement of R. Elazar ? R. Elazar
might answer: Do not the Boraithas themselves contradict each
other ? Have we not learned in another Boraitha : R. Simeon
b. Elazar laid down four rules in regard to damages: ** If done
on ground exclusively belonging to the plaintiff and not to the
defendant, the liability is for the whole (even if done by the
horn and in case of a non-vicious animal) ; if vice versa there is
no liability at all ; if on ground belonging to both, as e.g, a part-
nership courtyard or valley, there is no liability for the foot and
tooth, but for goring, pushing, biting, lying upon, and kicking, a
non-vicious pays one-half and a vicious pays the whole. If on
ground belonging to neither of them, as, for instance, a court-
yard belonging to neither of them, there is a liability for the
tooth and foot ; for goring and biting, pushing and lying upon
and kicking, a non-vicious ox pays one-half and a vicious pays
the whole damage." Hence, we see that it is stated that in a
partnership courtyard or a valley there is no liability for the
tooth and the foot, and hence do the two Boraithas contradict each
other. That one (which says there is no liability) treats of a
courtyard which is held in partnership for both storing fruit and
keeping oxen (in which case it is considered a partnership court-
yard as to both the foot and the horn), and therefore in case of
the tooth he is free, and in case of the horn he pays half, as it is
equal to public ground ; and that Boraitha taught by R. Joseph
treats of a court held in partnership only as to fruit, but not as
to oxen, in which case as to the tooth it is considered the ex-
clusive ground of the plaintiff. It seems to be so also from the
difference used in the wording of the Boraithas. In one case
things similar to an inn (which is not used for oxen), and in the
other — those similar to a valley (where generally oxen are pas-
tured) are stated. Infer herefrom. R. Zera opposed : If there
was a partnership for fruit, can it be called another 7nan s field.
24 THE BABYLONIAN TALMUD.
as required by Ex. xxii. 4 ? Said Abayi to him : " So long as it
is not partnership as to oxen it is considered another mans
field."
MISHNA III. : Damages are assessed in money, and are
collected from what has a value of money; and it must be done
before the court, and only on testimony of witnesses who are
freemen, and they must be members of a community who have
adopted a set of laws for their government ; and women are on
the same footing with men as to damages ; both the defendant
and the plaintiff must contribute (sometimes) toward the pay-
ment of the damages. (The whole Mishna will be explained
further on in the Gemara.)
GEMARA: What is the meaning of " assessing in money " ?
Said R. Jehudah: It means the assessment shall be made by the
Beth Din in money only, and this is explained in the following
Tosephtha which the rabbis taught : " If a cow has damaged
a garment (on the ground belonging to the owner thereof), and
subsequently the garment of same owner lying on public ground
was trod upon by the cow, and was damaged, it is not said,
because each party is entitled to damage from the other, that
both shall be relieved from paying each other at all, but the
damages in each case are separately assessed, and the excess paid
to the party due."
* * T/iej/ are collected only from what is valued in money, ' ' The
rabbis taught: The expression in the Mishna " what is valued
in money" teaches that the Beth Din is not obliged to collect
damages unless from real estates, but if the party entitled to be
paid, however, has anticipated and has seized upon personal
property the Beth Din may collect his claim from that property.
How is it so inferred from the Mishna ? Said R. Ashi : The
expression " which is valued in money " means to say but real
money itself, and all those things (personal property, slaves,
evidences of debt, etc.) are considered money itself. R. Jehu-
dah bar Hinna propounded the following contradiction to R.
Huna, the son of R. Jehoshua: It states " what is valued in
money " ; this teaches that the Beth Din is not obliged to collect
unless from real estates ; and another Boraitha states : It is writ-
ten [Ex. xxi. 34]: " (he shall give) unto the owner," which in-
cludes even equivalents of money, and even bran ? (Hence a
contradiction ?) The case treated of here is that if they are to be
collected from orphans' estates, for damages due from their de-
ceased father, in which case they are to be collected from realty
TRACT BABA KAMA (THE FIRST GATE). 25
only. If it is from orphans, what does the last part state — that
if the party has seized personal property the Beth Din may col-
lect therefrom ? The case is as Rabha said in the name of R.
Na'hman elsewhere, that he made the seizure during the lifetime
of the father, so also is the case here.
" On testimony of witnesses.'' This is to exclude the case
when one admits his guilt, and thereafter witnesses appear, so
that he is no more liable to pay a fine. This is correct accord-
ing to the one who holds that if one admits his guilt and there-
after witnesses appear that he is no more liable to fine, but
according to the one who says that in such a case he is, what
does the statement in the Mishna mean to exclude ? It is
needed in regard to the latter part, which states that the wit-
nesses must be freemen, to exclude slaves.
" And the women are on the same footing,'' etc. Where (rom
is this deduced ? In the schools of Hezkiah and R. Jose the
Galilean it was taught: It is written [ibid. xxi. 28]: "If an
ox gore a man or a woman" \ this signifies that the Scripture
made equal a woman and a man in respect to all crimes which
are mentioned in the Scripture.
It was taught : The one-half damage paid (in case of a non-
vicious ox); R. Papa said damages, because he is of the opin-
ion that usually oxen require particular care and according to
the law he would have to pay the whole damage, but as that
happened only once the Scripture had pity with him and re-
mitted one-half, and R. Huna the son of R. Jehoshua holds
that it is a fine, because he is of the opinion that oxen usually are
considered guarded and according to the law he would have to
pay nothing at all, but the Scripture nevertheless fined him in
order that he should take particular care. An objection was
raised, based upon the Mishna. Both the plaintiff and the de-
fendant sometimes contribute toward the payment of the dam-
age. It is right according to the one who says that the half
damages paid is considered damage ; therefore sometimes the
plaintiff must also contribute {i.e., he takes less than he suf-
fered), but if according to the one who holds that it is a fine, then
he takes what he is not entitled to, how can you say that he is
contributing ? This statement is only in regard to loss in value
of the carcass. But this was already stated in the first Mishna,
as explained above, " to complete the damage." Infer that the
owners are charged with the disposal of the corpse ? This need
be stated twice, once in case of a vicious and once in case of a
26 THE BABYLONIAN TALMUD.
non-vicious animal; and it would not suffice to state it only
once ; for if it should be stated only in case of a non-vicious
animal it would be argued that it is so because of that fact that
he was not vicious, but in case of a vicious animal I would say
it is not so ; and if it would be stated only in case of a vicious
animal, it could be said that it is so because the full amount of
damage is paid, but in the case of a non-vicious animal it is not
so, hence the necessity of stating it twice.
(An objection was made.) Come and hear: " The following
is the rule: All those who pay more than actual (punitive) dam-
age {e.g.y in case of killing a slave where thirty shekels are to be
paid) do not pay so on their own admission (but it must be
proved by other evidence). Is it not to be inferred herefrom
that in case of paying less (than actual damages), one does pay
so on his own admission ? Nay, this means in case where the
whole damage is paid. But how is it in case of paying less— is
the same the case ? Then why should it state, " the rule is that
all those who pay more,*' etc. ; why not state, " the rule is that
all those who pay damages not according to the actual amount
of damage done," which would make it clear as to those who
pay more as well as to those who pay less ? This objection re-
mains, and the Halakha, however, prevails that the half damage
is a fine. Can there be a settled Halakha in spite of an objec-
tion ? Yea, for what is the reason of raising the objection, be-
cause it does not teach, " as much as they have damaged " ? It
could not state so because there is the half damage in case of
raking up gravel, which is Mosaic that it is damage and not fine.
Now, when the conclusion arrived at is that the half damage is
a fine, when a dog consumes a sheep or a cat consumes a hen, it
is unusual (and therefore considered the derivative of the horn
and pays only one-half damage) ; such a damage is not collected
in Babylon, where fines are not collected. But this is so only
where those killed were big ones, but in case they were small
ones it is usual, and it is to be collected in Babylon also ; but if
the plaintiff has seized upon the property belonging to the de-
fendant (even in the former case), we do not compel him to sur-
render it, and also if he says : '* Fix me a time to go to Pales-
tine," his request may be granted. And if he does not go he is
put under the ban. In either case we place him under the ban
until the tort-feasors are removed, as stated further on (end
Chapter IV.), in the name of R. Nathan.
MISHNA IV, : There are five cases which are considered
TRACT BABA KAMA (THE FIRST GATE). 27
non-vicious and five which are considered vicious. A domestic
animal is considered non-vicious to gore, to push, to bite, to
lie upon, or to kick; the tooth (of an animal) is considered vi-
cious to consume that which is fit for it ; the foot is considered
vicious to break everything on its way while walking; the vicious
ox ; the ox doing damage on the estates belonging to the plaintiff
exclusively; and a man. The wolf, the lion, the bear, the
leopard, and the bardalis and the serpent are considered vicious.
R. Elazar says : When they are domesticated they are not, with the
exception of the serpent, which is under all circumstances vicious.
GEM ARA : From the teaching of the Mishna that * ' the tooth
is considered vicious to consume,** it must be inferred that the
case is when the damage was done on the ground belonging to
the plaintiff, and it is nevertheless taught " the animal is not
vicious," which means not to pay the whole, but to pay half,
and this is according to the rabbis, who say that the horn doing
damage on the estate of the plaintiff is considered unusual, and
pays only one-half of the damage; then according to whom
would be the latter part ? ** The vicious ox and the ox doing
damage on the estate of the plaintiff and the man," which
means that they pay the whole damage, according to R. Tar-
phon, who says that the horn, although it is unusual for it to do
damage on the premises of the plaintiff, still pays the whole.
Then the first part of the Mishna will be according to the rab-
bis, and the latter part according to R. Tarphon ? Yea, so it is,
as Samuel said to R. Jehudah : Genius, do not trouble yourself
about the explanation of our Mishna, and follow my theory that
the first part is in accordance with the rabbis and the latter
part is in accordance with R. Tarphon. R. Elazar in the name of
Rabh, however, said that both parts are according to R. Tarphon,
but the first part treats of a court that was separated for fruit only
to one of the parties, and for oxen for both of them, and in such a
case concerning * ' tooth " it is considered the premises of the plain-
tiff only, and concerning " horn " it is considered public ground.
Said R. Kahana: I have explained this Halakha to R. Zbid
of Nahardea, and he rejoined: How can both parts of the
Mishna be in accordance with R. Tarphon ? Did not the Mishna
state, ** the tooth is vicious to consume what \s fit for it," which
signifies that it is vicious only as to what is fit for it, but not as
to what is unfit (as then it is like the horn and pays only half),
and R. Tarphon says plainly that even the horn pays the whole
on the premises of the plaintiff ?
28 THE BABYLONIAN TALMUD.
Therefore said Rabhina: "The Mishn'a is not completed, and
ought to read as follows : There are five cases which are consid-
ered non-vicious until they are declared to be vicious ; the
tooth, the foot, however, are considered vicious from the very
beginning, and this is called the vicious ox ; as to the ox doing
damage on the estate of the plaintiff, the rabbis and R. Tarphon
differ ; and there are other vicious animals similar to those : the
wolf, the lion, the bear, the bardalis, the leopard, and the ser-
pent." So also we have learned plainly in a Boraitha.
"And not to lie upon. ' ' Said R. Eliezer :" It is so only when
it lies on large vessels, but if on small ones it is usual, and it
comes under the law applying to the foot."
" The wolf, the lion, etc., and the bardalis,'' What is a bar-
dalis ? Said R. Jehudah : It is a Nephrasa. What is a Nephrasa?
Said R. Joseph: It is an Apa (Hyena)."^ Samuel said if a lion
on public ground had caught an animal and ate it up alive there
is no liability, for it is his usual way to do so, and therefore it is
as if an ox had consumed fruit or herbs in public ground; but if
he had first killed it and then ate it up he is liable, for it is not
usual, and it comes under the law applying to the horn.
MISHNA V. : There is no difference between a vicious and
a non-vicious animal, only that a non-vicious pays one-half of
the damage, and only from the (money realized from the sale of
the) body of the animal having done the damage ; and a vicious
animal pays the whole damage and from the best estates.
GEMARA: What is meant by "best estates"? said R.
Elazar : It means, the highest of his own estates ; and so it is
said [II Chron. xxxii. 33]: "And Hezekiah slept with his
fathers, and they buried him in the best place of the sepulchres,"
etc., and R. Elazar said, " best " means among the " highest of
his own family " — that is, David and Solomon."
It is written [ibid. xvi. 14]: " And they buried him in his
sepulchres, which he had dug for himself in the city of David,
and they laid him in the couch which was filled with sweet odors
and divers kinds of spices," etc. "And all Jehudah and the
inhabitants of Jerusalem showed him honor at his death " [ibid.
xxxii. 33]. Infer from this that his disciples were placed on his
* There is a long discussion in the Talmudical dictionaries as to the correct
meaning of bardalis, which is mentioned in several places in the Talmud and
seems to have different meanings ; we translate it " hyena" according to Mr. Shein-
hack in his " Haraashbir."
TRACT BABA KAMA (THE FIRST GATE). 29
grave to study the law. R. Nathan and the sages differ as to
how long it continued; one says it lasted three, the others say
seven, and still others say it lasted thirty days.
The rabbis taught (referring to the passage just quoted)
that it means the thirty-six thousand people who preceded the
cofifin of Plezekiah, the king of Judah, all their shoulders bared.
So said R. Jehudah. Said R. Ne'hemiah to him: " Was not
the same thing done upon the death of Ahab ? " The great
honor consisted in that the Holy Scrolls were placed on his
cofifin, and it was announced, " That one resting in the coffin
has performed all that is written in these Scrolls." But do we
not do the same thing at present ? At present we only take the
Scrolls out, but we do not place them on the bier, and if you
wish you may say that at present we even place them on the bier,
but do not say " that he performed," etc. Said Rabba bar bar
Hana: I was once walking along with R. Johanan, and he said
that at present we say even '* he performed," etc., but we do
not say " he taught " (that which is written in the Scrolls, which
was said at the funeral of Hezekiah). But did not the master
say: " The study of the Law is great because it causes action " ?
Hence we see that action has preference over study, and why
was it said of Hezekiah that he " taught " ? This presents no dif-
ficulty. Over learning, action has a preference ; teaching, how-
ever, has preference over action.
R. Johanan in the name of R. Simeon b. Johai said: " It is
written [Isa. xxxii. 20] : * Happy are ye that sow beside all
waters, freely sending forth the feet of the ox and the ass. ' " It
means that those who occupy themselves with the study of the
Law and those bestowing favors on others will be rewarded with
the inheritance of two tribes, as it is written [ibid., ibid.] :
Happy are ye that sow, ' ' and * * sowing' ' means nothing else than
charity, as it is written [Hoseax. 12]: " Sow then for yourselves
after righteousness, that you may reap (the fruit) of kindness " ;
and by " water" is meant the Law, as it is written [Isa. Iv. i] :
" Ho, every one of ye that thirsteth, come ye to the water"
(/>., the Torah) ; "is rewarded with the inheritance," etc.,
means he overcomes his enemies as the tribe of Joseph, as it is
written [Deut. xxxiii. 17]: " With them shall he push nations
together to the ends of the earth," and he acquires understand-
ing as the tribe of Issachar, as it is written [I Chron. xii. 32] :
" And of the children of Issachar, those who had understanding
of the times to know what Israel ought to do."
CHAPTER IL
RULES REGULATING THE PRINCIPLE OF VICIOUSNESS AND NON-VI«.
CIOUSNESS IN THE FOUR PRINCIPAL TORT-FEASORS ENUMERATED
IN THE FIRST MISHNA.
MISHNA /. : What tendency makes the foot to be consid-
ered vicious ?* That of breaking (everything in its way) while
walking. An animal has a tendency to cause breakage while
walking in her f usual way. If, however, she were kicking (which
is not her habit to do, and therefore considered a derivative of
the horn), or there were gravel being kicked up from under her
feet (which is sometimes her habit to do) and vessels were
broken, one-half of the damage is paid. (In the case of gravel
it is so by tradition; and the case is that it was done on the
premises of the plaintiff.) If she stepped on a vessel and broke
it, and the fragments thereof fell on another vessel and broke it,
for the first vessel the full amount of the damage is paid (for it
is the damage of the foot), but for the second vessel only one-
half is paid (for it is the same as that of " gravel "). Cocks have
a tendency to walk in their usual way and cause breakage. If,
however, something was attached to their feet, or they were
* See Gemara.
f We are compelled to use in our translation of this section for male and female
animals the same terms used when speaking of human beings, for the following
reasons : {a) The Bible translators use the same terms when speaking of animals,
either of common or distinct gender, e.g., see I.eeser's translation (which we follow
in the translation of the Talmud), Numb, xxii, 25, Exod. xxii. 5, as regards "ass,"
which is of common gender, also ibid,, Exod. xxi. 29, Numb. xix. 3, as regards a
distinct gender ; and so in many, many other places. Now, as the Mishna and the
Gemara following use the word "animal" here in the feminine (probably for the
reason that in those times of domestic animals the female was usually permitted
to walk the highway without one directing her, which was not so with an ox, which
was usually hitched to a wagon and in charge of a driver whose duty it was to take
care that the ox did not step on articles lying in the way), and as " it " is usually used
for the neutre gender, we could not very well use this term. (We follow strictly this
rule as regards gender in all other places, to correspond with the original.)
(3) If we used "it" and " its" instead of the above terms, it would be very hard
for the reader to comprehend the true sense of the discussions.
30
TRACT BABA KAMA (THE FIRST GATE). 31
hopping and they broke vessels, only one-half is paid (the rea-
son is explained further on in the Gemara).
GEMARA : Said Rabhina to Rabha: (Let us see.) Does not
the term " foot" in the Mishna mean the foot of the animal;
and does not the term ** animal " mean its foot ? Why, then,
the change of the terms in the Mishna? He answered: Our
Mishna begins with ** foot," because the same term was used in
a previous Mishna (page 27), (but the proper term is " animal ").
The rabbis taught : An animal has a tendency to walk in her
usual way and cause breakage. How so ? An animal that en-
tered upon the premises of the plaintiff and caused damage with
her body, or with her hair while walking, or with the saddle which
she had on, or with the freight she was loaded with, or with the
halter placed in her mouth, or with the bell suspended from her
neck ; and an ass with his load the whole must be paid. Sum-
machus says: In the case of gravel and in that of a swine raking
in rubbish, if damage was done the whole must be paid. " Dam-
age was done ?" Is this not self-evident ? Read therefore: If
he hurled it and thereby did damage, the whole must be paid.
"Gravel?" Where is this here mentioned? The Boraitha is
not complete, and ought to read thus : In case of gravel, although
it is in their nature to kick up, still half only is paid ; and the
same is the case if damage was done by a swine that was raking
in rubbish and hurled soxa^ of it. Summachus, however, says:
Gravel and swine pay the whole damage.
The rabbis taught: Cocks that were flying from one place
to another, and broke vessels with their wings, pay the whole ;
if, however, the damage was caused by the wind produced by
the wings, only half is paid (for whatever is not done directly by
the body, but only by the force produced by the body, is con-
sidered to be on the same level with " gravel," and pays half).
Summachus, however, holds that the whole must be paid.
Another Boraitha states: Cocks that were hopping on dough,
or on fruit, and made the same dirty or punctured them, the
whole damage must be paid. If they throw on them dust or
gravel, half is paid. Summachus, however, holds that the
whole must be paid.
Still another Boraitha teaches: If a cock were flying from
one place to another, and the wind produced by the wings dam-
aged vessels, only half must be paid. So we see that the above
anonymous Boraitha is according to the Rabbis. Said Rabha:
On the contrary, the last Boraitha is correct according to Sum-
32 THE BABYLONIAN TALMUD.
machus (who opposes that it was a tradition that " gravel "pays
only half) and says that the whole must be paid, because he holds
that one's force is on the same level with one's body (and therefore
damage done by the wind, caused by the wings, is equivalent
to damages done by the wings themselves), but according to the
rabbis, if it is considered as done by the body, then the whole
must be paid ; if it is not considered as done by the body, nothing
is to be paid. Subsequently Rabha himself explained : It is undis-
puted that one's force is equivalent to one's body, but the force
(wind) being unusual, it is considered as "gravel," for which
there is a tradition that only half is paid.
Rabha said again: All that which in case of one having a
running issue is considered a sufficient contact to make the
article unclean, in case of damages pays the whole ; and all that
which in case of one having a running issue is not sufficient con-
tact to make unclean, pays in case of damages half; and he
means to teach us the case of the wagon carrying one having a
running issue (i.e.y as in case of a wagon carrying one having
a running issue which passes over vessels the latter become un-
clean, but if only " gravel " is kicked up from under the wagon
and falls upon vessels the latter do not become unclean ; so also
in case of damages, in the first instance the whole, and in the
latter instance only half is paid). There is a Boraitha support-
ing Rabha: " An animal has a tendency," etc. (as stated above,
page 31), with the addition that a wagon carrying a person pays
the whole damage.
The rabbis taught: "Cocks that were nibbling at a rope
from which a water-pail was suspended, and severing the rope
broke the water-pail, pay the whole." Rabha propounded a
question : If an animal stepped on a vessel which did not break
at once, but only rolled away for some distance and then broke,
what is the law ? Do we follow the origin and consider it to
have been broken by the body (and the whole is paid), or do we
follow the place where the breakage took place, and it is the
same as in the case of " gravel " (and only half should be paid) ?
Come and hear: Hopping is not to be considered vicious; ac-
cording to others, however, it may. Is it possible that damage
done by hopping shall not be considered vicious (is it not in the
nature of the cocks to do so) ? Must it not be assumed that
while hopping the vessel rolled away and then broke, and they
differ on the following: One holds we trace the damage to the
origin, and one holds that w^e consider only the place where the
TRACT BABA KAMA (THE FIRST GATE). 33
damage occurred ? (Hence we see that in this case there exists
a difference of opinion.) Perhaps (all agree that we consider
only the place where the damage occurred, but) this is in accord-
ance with Summachus, who holds that even " gravel " pays the
whole. If so, how would you explain the latter part: " If a
fragment flew off and fell on another vessel and the latter
broke, for the first vessel the whole, but for the second only
half must be paid ?*' Now if it be according to Summachus,
does he then hold to the theory of half damage ? And if you
should say that he distinguishes between primary and secondary
force (in case of the rolling of the water-pail it was primary
force, but in that of the vessel damaged by the fragments of the
pail it was secondary force), let the question of R. Ashi as to
whether or not Summachus distinguishes between primary and
secondary force be solved from this, that it is not on the same
level with primary force ? We must, therefore, say that the
above Boraitha is according to the rabbis. Infer from this that
we trace the damage to its origin.
R. Bibi bar Abayi, however, said : In the case of the above
water-pail the latter was rolling by the continuous original action
of the cock (even in the moment of breaking).
Rabha questioned: The one-half damage paid in case of
" gravel," is it paid out of the body of the tort-feasor, for we
do not find anywhere that half damage is paid from the best
estate ; or is it paid from the best estate, for we find nowhere
that damage done by usual means shall be paid out of the body
of the tort-feasor ? Come and hear: " A dog that snatched and
carried off a cake from the burning coals on which it was being
baked to a barn, and there consumed the cake, and with the
burning coal that stuck in the cake set fire to the barn, must
pay for the cake the whole, and for the barn only one-half."
Is the reason for that not because the damage of consuming the
cake is that (directly) of the tooth, and the damage to the barn
is only indirectly (remote), as in ** gravel," and we have (never-
theless) learned in a Tosephtha in regard to this latter that the
half damage is paid out of the body ? (Hence that it is paid
out of the body ?) But, on the other hand, can it enter the
mind that the reason for the liability in this case is because it is
the usual case of ** gravel," according to R. Elazar of the Bo-
raitha, even if he concurs with Summachus that " gravel " pays
the whole damage ? Do we find anywhere that such is paid out of
the body ? We must, therefore, say that in the usual case of
3
34 THE BABYLONIAN TALMUD.
** gravel " the damage is paid out of the body, but the case in
the above Mishna is that the coal was handled not in the usual
way, and R. Elazar holds in this respect with R. Tarphon,
who said (page 50) that where damage was done by the horn
in an unusual way on the premises of the plaintiff, the whole
damage must be paid. In reality, however, it is not so. For
what is the reason of the assertion that it is, according to R.
Tarphon, because of the whole damage ? We can say that
K. Elazar holds, according to Summachus, that '* gravel " pays
the whole, and he agrees also with R. Jehudah, who says fur-
ther on that the non-vicious element (even in case of vicious-
ness) remains intact, and therefore when it is stated here that it
is to be paid out of the body, it refers to that element (and in
case of non-viciousness it is always paid out of the body).
Said R. Sama, the son of R. Ashi, to Rabhina*: (Even ac-
cording to this theory) you can explain R. Jehudah's statement
only in case of a non-vicious animal that became vicious, but
how can you explain his statement when the animal is consid-
ered vicious from the beginning, as in the case of " gravel in the
unusual way " ?
We must, therefore, say (if you wish to explain that it is
*' gravel in the usual way ") that R. Elazar held that the whole
damage must be paid, according to him, only when it became
vicious by doing so thrice, and they differ in the following : One
holds that the theory of viciousness does not apply to gravel,
and one holds that it does. If it should be so, then why did
Rabha question whether there can be viciousness in case of
" gravel in the usual way " (/.^., as when we say that the first
time one-half damage is paid, as in the case of the horn, so also
it becomes vicious by being done thrice, as the horn), or vicious-
ness cannot apply here, (for as it is a derivative of the foot (be-
cause it is natural) it is considered vicious from the beginning,
and still pays only one-half damages) ; according to the rabbis
it certainly is not, and according to R. Elazar it is ? Rabha
might answer: My doubt whether the theory of viciousness ap-
plies to gravel is according to the rabbis, who differ with Sum-
machus; in our case, however, both the rabbis and R. Elazar
* The Rabhina mentioned here is Rabhina Zuta. a nephew of the first Rabhina,
who is mentioned in Kethuboth loo^y for Rabhina, who was a disciple of Rabha and
colleague of R. Ashi, died long before in the time of R. Sama, the son of R. Ashi.
See Doroth Harishonim, Presburg, 1897.
TRACT BABA KAMA (THE FIRST GATE). 35
agree with Summachus, and the reason why the rabbis hold
that only half is paid, is because the cause was in the unusual
way (in which case it is a derivative of the horn), and it does not
become vicious, and the point of their difference is the same as
that of the rabbis and R. Tarphon. We have heard R. Tar-
phon say only as to the whole damage, but have we ever heard
him say that it must be paid out of the body ? Yea, it is sufifi-
cient that the result derived from an inference be equivalent to
the law from which it is drawn, and as this is a derivative of the
horn, it cannot pay more than the principal or in another man-
ner. But we know that R. Tarphon does not hold to the rule
just stated ? (There is no difificulty.) He does not hold to that
rule only in cases where the rule of a fortiori is applicable (as
explained further on, page 51), but where this rule is not appli-
cable he does hold to the former rule.
R. Ashi questioned : According to the rabbis, who differ
from Summachus and hold that in ** gravel in the usual way"
only one-half is paid, does the " unusual way " in gravel (as, for
instance, if done by kicking up gravel) change it to the payment
of one-fourth of the damage {i.e., as the " usual way " is consid-
ered vicious, does the " unusual" way make it non vicious to
pay one-half of the amount paid in case of viciousness)? Can
this not be solved from Rabha's question, whether there is or
there is not viciousness in the case of gravel, from which it is to
be inferred that it does not change it (for if it does change it to
one-fourth, then in case of viciousness it would pay only half,
how can Rabha doubt whether viciousness in this case pays the
whole — does viciousness, then, pay more than double the amount
of non-viciousness)? We can explain that Rabha was doubtful
in both rules (both as to change and viciousness). If you will
assert that in case of gravel the rule of change does not apply,
can we apply to this case the rule of viciousness ? This ques-
tion remains unanswered.
** If she were kicking^'* etc. R. Abba bar Mamal questioned
R. Ami, and according to others R. Hyya bar Abba: If she
(the animal) were walking in a place where it was impossible for
her not to kick up gravel, and she kicked, and by so doing
kicked up gravel and caused damage, what is the law ? Shall
we say that because it was impossible for her not to do it, it is,
although done by kicking, considered the usual way (and pays
half), or we do not consider it so, because still i^ was done by
kicking ? This question remains unanswered.
36 THE BABYLONIAN TALMUD.
R. Jeremiah questioned R. Zera : If she were walking on pub-
lic ground and gravel being kicked up from under her feet caused
damage, what is the law ? Is this a derivative of " horn " (be-
cause gravel pays half), and she must pay even if it was on pub-
lic ground, or gravel is the derivative of " foot " (because it is
done with the foot), and there is no liability if done on public
ground ? He answered him : Common-sense dictates that it is
a derivative of the *' foot." (He asked again:) If she were walk-
ing on public ground and kicked up gravel which fell on private
ground causing damage, what is the law ? He answered : If
there is no starting, shall there be a resting {i.e., the starting
being on public ground, where there is no liability, shall the
resting-place of the gravel be taken into consideration) ? The
questioner objected: Have we not learned elsewhere : If she were
walking on the road and kicked up gravel, whether on public or
on private ground, there is a liability. Shall we not assume
that it means that both the kicking up of the gravel and the
damage were done on public ground ? (Now if kicking up
gravel is compared with the ** horn," therefore there is a liabil-
ity, as in the latter case; but if it is a derivative of the " foot,"
why should there be a liability ?) (He answered:) Nay, it means
that the kicking was on public, but the damage was done on
private ground. But did you not argue, " If there is no start-
ing, shall there be a resting?" He answered: I retract my
argument.
R. Jehudah the second and R. Oshiyah were sitting on the
porch of R. Jehudah's house, and a question was asked: If she
has done damage by shaking her tail, what is the law ? (Is it
considered to be in her habit to do so, and there is no liability,
or not ?) Said the other: Is there any duty on the owner to
hold her by the tail when leading her ? If so, why not apply
the same argument to the horn, shall the owner hold him (the
ox) by the horn when leading him ? What comparison is this ?
In the latter it is not in his nature to do so but in the former it
is (and therefore it is a derivative of the " foot "). If it is in her
nature to do so, then what is the question for ? The question
was only in case it was extraordinary shaking. (This question
remains.)
** Cocks have a tendency,** etc. Said R. Huna: The state-
ment that he pays only half and no more relates only to a case
where the article got attached of itself; but if a human being
attached it, the one who did so is liable to the whole damage
TRACT BABA KAMA (THE FIRST GATE). 37
(for it is considered a ** pit "). " If it got attached of itself,"
who is liable ? If we assume that the owner of the article
attached is liable, how was the case ? If he kept the article with
good care, then it was only an accident ; if he did not, then it
was wilful, and the full damage must be paid. We must, there-
fore, say that the owner of the cock is liable.
Why does he not pay the whole damage ? Because it is writ-
ten [Ex. xxi. 33] :" If a man dig a pit," which means to limit it
to a human being only, and exclude the case of an ox digging
a pit (in this case the article attached is considered "a pit"
which the cock created), let the same argument apply even to
the half damage, and let us say: " If a man dig a pit, but not if
an ox dig a pit " (and let there be no liability at all). We must,
therefore, say that our Mishna treats of a case where the cock
has done the damage by hurling the article for some distance
(in which case it is " kicking up gravel," and only half damage
is paid), and the statement of R. Huna applies to the following
case: '* Of an ownerless article, R. Huna says if it got attached
of itself there is no liability at all ; but if it was attached by a
human being, the one who attached it is liable." On what
principle is he liable (for, after all, it does not resemble a " pit "
in all respects, because a " pit " is stationary, while here it was
removed from the place where it was tied on) ? Said R. Huna
bar Munoa'h : He is liable on the principle of a " movable pit,"
which is made so either by human beings or by animals {e.g,^ if
one places a stone in the public highway which, while lying in
that place, did not cause any damage ; and another person or an
animal removed it from that to another place and damage was
caused there, the latter is liable).
MISHNA //. : What tendency makes the tooth to be con-
sidered vicious ? That of eating what is fit for it. An animal
has a tendency to consume fruit and vegetables; if she, how-
ever, chewed up a garment or vessels, only half damage is paid.
This is said only if on the premises of the plaintiff, but on pub-
lic ground there is no liability. But if she derived any benefit
therefrom, the value of such benefit is paid. How so ? If she
consumed from the middle of the public highway, the value of
the benefit is paid ; if from the sideways of the highway only,
the amount of the damage is paid; if from yi\i^ front of a store,
the value of the benefit; if from within the store, only the value
of damage is paid. (This Mishna is explained further on.)
GEMARA: The rabbis taught: The tooth has a tendency
38 THE BABYLONIAN TALMUD.
to consume what is fit for it. How so ? For an animal that en-
tered the court of the plaintiff and consumed food that is fit for
her or drank liquids that are fit for her, the whole damage must
be paid. The same is when a beast entered the court of the
plaintiff and killed an animal, or consumed meat, the whole
damage must be paid.
For a cow, however, that consumed barley and an ass that con-
sumed beets, or a dog that was licking oil or a swine that de-
voured meat, the whole damage must be paid (although it is not
their usual food). Said R. Papa : Now that you lay down the
rule that an article consumed which constitutes the food of the
consumer only in case of unusual necessity is considered food;
for a cat that devoured dates and an ass that consumed fish, the
whole must be paid. It happened that an ass consumed a
loaf of bread contained in a basket and chewed up the basket,
and R. Jehudah decreed that the whole be paid for the bread
and half for the basket (because the former is in his habit to eat
and the latter not). Why so ? Is it not in his habit to chew
also the basket while eating the bread ? The case was that he
first consumed the bread and then chewed up the basket. Is
then bread the usual food of cattle ? Have we not learned : " If
she consumed bread, meat, or cooked food, half is paid " ? Shall
we not assume that it treats of cattle ? Nay, it means a beast.
If so, then it is in its habit to eat meat ? The case is that the
meat was roasted. It can be explained also that the meat was
raw, but that the animal was a deer. And if you wish to explain
it that it treats of cattle, then the case was that the food was
placed on the table (which is unusual for cattle to eat from). It
happened that a goat, noticing beets on the top of a barrel,
climbed up and consumed the beets and broke the barrel, and
Rabha ordered to pay the whole for both. Why so ? Because
as it is in her habit to consume beets, so it is also her habit
to climb up the barrel. Ilpha said : An animal being on public
ground, that extended her neck and consumed some article from
the back of another animal, is liable. Why so ? Because the
back of the other animal is considered as the plaintiff's premises.
Shall we assume that he shall be supported by the following
Boraitha: ** When his basket was placed on his back and an ani-
mal extending her neck reached the food therein and consumed
it, it is to be paid for " ? Nay, the case is as Rabha said, that
it was reached by the animal jumping at it, so also was the case
here, viz., by jumping. Where was Rabha's explanation taught ?
TRACT BABA KAMA (THE FIRST GATE). 39
On the following statement of R. Oshiyah: An animal on pub-
lic ground, if she has consumed while walking there is no liabil-
ity, but if she has done so while standing in one place there is a
liability. (And it was questioned): Why is this so ? Is it not
usual for an animal also to stand in the public highway ? Said
Rabha: R. Oshiyah meant to say if the animal jumped. R.
Zera propounded a question: If it was rolling, what is the law ?
To what case has R. Zera reference ? If the animal was standing
on private ground and the article was rolling toward the private
ground.* (Do we follow the place where it was consumed, and
there is no liability, or do we follow the place wherefrom it was
removed, and there is a liability ?)
Come and hear: ** R. Hyya taught: A bundle of food being
placed partly within and partly without (private premises), if
the animal consumed that portion placed within, there is, and if
that portion placed without, there is no liability." Shall we not
assume that it was rolled in {i.e.y that the whole was consumed,
and it was rolled wholly in or wholly out, respectively ; hence,
that we follow the place of consumption) ? Nay, R. Hyya taught
so only in long-leafed grass (in which case every leaf is partly
within and partly without the premises, and as soon as one end
is touched the other goes after it, and therefore we follow the
place of consumption, but not so in case of grain).
" If she chewed up a garment ^'^ etc. To what part in the
Mishna has this reference? Said Rabh: To all parts. Why
so ? If one does an unusual thing (as in this case the placing
of a garment in public ground), and another does an unusual
act to that thing (as in this case the chewing up of the gar-
ment by the animal), there is no liability. Samuel, however,
says this was taught only of fruit and vegetables, but for gar-
ments and vessels there is a liability. Resh Lakish, however,
concurs with Rabh (because he adheres to his theory further on,
Chap. III., Mishna 6.)
** If she derived benefit y*' etc. How much ? Rabba said the
value of hay. Rabha said the value of cheap barley. There is
a Boraitha in accordance with Rabba, namely: " R. Simeon b.
Jo'hi says : Only the value of hay or straw is paid, and no more."
There is another Boraitha in accordance with Rabha, namely:
** If she derived benefit, she pays as much as the value of the
benefit. How so ? If she consumed a kabh or two, not the
* According to Maimonides and others.
40 THE BABYLONIAN TALMUD.
full value is paid, but only so much as one requires to feed his
animal on food fit for her, although he is not in the habit of using
such food. Therefore (as the fitness of the food is taken into
consideration) if she consumed wheat or other food injurious to
her, there is no liability (if on public ground)."
R. Hisda said to Rami bar Hama: I regret that you were
not in our neighborhood the other evening when very acute
questions were asked of us. What were they ? Thus : One
who takes up his dwelling in the court of his neighbor without
the latter's knowledge, must he, or must he not, pay rent ?
How was the case ? If the court was not to be let, and the
dweller was such that he did not need to rent any (e.g., if he
had a dwelling of his own, or could get one without paying
rent), then the one derives no benefit and the other suffers no
loss ? And if the court was to be let and the dweller needed a
dwelling-place, then one does derive benefit and the other suffers
loss (and why should no rent be paid) ? The case was where the
court was not to be let, but the dweller needed one. How is it ?
Can the dweller say to the court-owner: '* What loss have I
caused you ? " Or can the court-owner say to the dweller: " It
does not matter, for you derived benefit at any rate" ? And
he answered him: For this there is a Mishna. Where is that
Mishna ? He said to him: If you will render me some services,
I will tell you where it is. He took off his coat and rolled it
together for him. He then said: It is the above Mishna which
states that if any benefit was derived the value thereof must be
paid. Said Rabha: How secure and careless does the man feel
that knows that the Lord helps him. (See Yomah, page 31, a
similar saying in the name of R. Huna.) He accepted the
Mishna as a case similar to the one above, when in reality the
facts of the Mishna are different from those of the case above,
as in the case stated in the Mishna one derives benefit and the
other suffers damage, while in his case one derives benefit and
the other does not suffer any loss.
[What could Rami bar Hama say to that ? Generally, one
who places fruit on public ground renounces ownership of it
(and therefore there is no loss).]
Come and hear : R. Jehudah said also that one who occupies his
neighbor's court without the latter's knowledge must pay rent.
Infer from this that in case one derives benefit, although the
other suffers no loss, there is a liability ? Nay, there it is differ-
ent; it treats of a new house, the walls of which become soiled
TRACT BABA KAMA (THE FIRST GATE). 41
from use (and this is considered a loss to the owner). (Finally)
this question was sent to the school of R. Ami, and he answered:
What has he done, what loss has he suffered, or what damage
has he caused ? Said R. Hyya bar Abba : Nay, we have still
to consider this matter (as the soiling may be considered a dam-
age). Afterward they sent to him (to R. Hyya b. Abba) for his
decision in this matter, and he said: They continue sending me
this question ; if I could find any reason to decide this, would
I not have answered ?
(In reference to above question) it was taught : R. Kahana said
in the name of R. Johanan : He need not pay any rent. R. Abbuhu
said in the name of the said authority that he need pay rent.
R. Abba bar Zabda sent a message to Mari bar Mar to ask
R. Huna for his decision in the above matter. In the mean-
time R. Huna departed life. Said Rabba, his son: So said my
father and teacher in the name of Rabh : He need not pay.
(He also said): One who rents a house from Reuben must pay
the rent to Simeon. How does Simeon come in here ? He
meant thus: If the house, in which he was living there at the
time, was sold to Simeon, the rent must be paid to Simeon
(although Simeon had no knowledge that he was occupying the
house). Could, then, R. Huna say two things which contradict
each other ? There is no contradiction, because in the latter
case the occupant intended to pay for its use. The very same
case was taught by R. Hyya bar Abin in the name of Rabh, and
according to others in the name of R. Huna. R. S'horah said
in the name of R. Huna, quoting Rabh: One who dwells in the
house of his neighbor (which was unoccupied and located in an
unsettled district) without the owner's knowledge need not pay
any rent, because the non-occupation causes damage, as it is
written [Is. xxiv. 12]: ** And in ruins is beaten the gate" {i.e.^
if unoccupied the gate becomes ruined, and therefore the owner
of the house derives benefit from the occupation). Said Mar
bar R. Ashi: I once saw such a house which was damaged and
looked as if gored by an ox. R. Joseph assigned another rea-
son, viz., a house which is inhabited lasts longer (for the inhab-
itants make all the repairs necessary). What is the difference
between these two reasons ? There is a difference when the
house is used for storing wood and straw.*
* Rashi explains this that the owner of the house used it for storing wood and
straw, and the tenant lived in the same place used for such storage ; and then as to
" ruin," there is none, for it is being used ; but as to repairs, the owner would not seo
42 THE BABYLONIAN TALMUD.
A certain person erected a palace on the ruins belonging to
orphans, and R. Na'hman collected the rent (for the use of the
ruins) from the palace. Should we assume that R. Na'hman
holds that one who dwells in the house of his neighbor without
the knowledge of the owner must pay rent ? In this case the
ruins were previously occupied by ancients who used to pay a
nominal rent to the orphans, and R. Na'hman ordered Carmines
to go and compensate the orphans, which order was disregarded
by him, and therefore R. Na'hman collected it from the palace.
" How does she pay for the benefit,'^ etc. Said Rabh: This
was taught only when she turned around her head (from the
public highway to the sideway), but in a case where one leaves
a portion of his own ground open to the public highway (and an
animal enters upon it while walking on the public ground and
consumes fruit stored there) there is no liability. Samuel, how-
ever, says : Even in the latter case there is a liability. Shall we
assume that they differ as (to the liability of a) pit located on
one's own ground (where the owner renounced his ownership
of the ground, but not of the pit) ? Rabh holds that (the
owner of the pit) is liable (and in this case in question the fruit
is considered a ** pit," and the ground being ownerless, it is
considered public ground, and therefore he ought not to have
done so, and for that reason there is no responsibility for con-
suming it). Samuel holds that for the pit in question there is
no liability (^consequently he was allowed to place his fruit there,
and therefore the consumer is liable). Nay, Rabh may answer,
I hold in case of a ** pit on one's own ground " that there is no
liability ; but why is here the consumer liable ? Because the owner
of the animal can say : You cannot have so much privilege as to
place your fruit in the immediate neighborhood of public ground
and hold my ox to liability. And the same is the case with
Samuel, who may say: In case of a " pit on one's own ground,"
I hold that there is a liability, but here, if even it would be right
(for the owner of the animal) to say that the ox could not be
aware of the pit (and therefore if he should be damaged the
owner of the pit would be liable), the case is different, because
what repairs are necessary, as he does not live there ; consequently, in such a case,
according to R. Joseph, he need not pay, and according to R. S'horah he need pay.
We, however, would say, that the Geniara means that it was used for storing wood
and straw by the stranger, and, on the contrary, according to Rabh, he need not pay,
for the house is no more vacant ; and according to R. Joseph he need pay, because he
will not care to make repairs. We leave the choice to the reader.
TRACT BABA KAMA (THE FIRST GATE). 43
the fruit was exposed to view and the ox could not escape
noticing it (and therefore if the ox should be injured the owner
of the fruit would not be liable ; the owner of the ox, however,
is liable for the fruit consumed by his ox, because he derived
benefit from another's property). Shall we assume that in the
above case (turning the head) the Tanaim of the following Bo-
raitha differ: "If an animal consumed from the middle of the
highway, the value of the benefit derived is to be paid ; if from
the sideways, the value of the damage is to be paid. Such is the
dictum of R. Meir and R. Jehudah; R. Jose and R. Elazar,
however, hold that it is not her usual habit to consume, but
only to walk (on the sideway, and therefore there is a liability).
Now, shall we assume that R. Jose concurs with the first Tana,
but they differ only as to " turning the head," viz.: The first
Tana holds that in that case she also pays only the value of the
benefit, and R. Jose holds that she pays the value of the dam-
age done (and hence that the Tanaim differ)? Nay, it may be said
that all agree, that in case of ** turning the head "it is either
according to Rabh or according to Samuel, but they differ here
as to feeding in another man's field [Ex. xxii. 4] : " And he lets
his beasts enter, and they feed in another man's field."
One holds that it means to ^xoXudQ public ground (and there-
fore if she consumed from the middle of the street there is no
liability), and one holds it means to exclude the ground of the
defendant. "The ground of the defendant?" (Why should
there be any liability ?) Let the defendant say to the plaintiff:
What right had you to place your fruit upon my ground ? We
must therefore say that they differ in cases stated by Ilpha and
R. Oshiyah (see supra, page 38). (R. Meir holds, if in the mid-
dle of the highway only the value of the benefit is to be paid in
both the case stated by Ilpha and that stated by R. Oshiyah.
And R. Joseph maintains that it is not her usual habit, etc.,
and holds to Ilpha and R. Oshiyah.)
MISHNA ///. : A dog or a goat that jump down from the
top of a roof and break vessels pay the whole damage; for they
are vicious (as to jumping, and it speaks of a case on the
premises of the plaintiff). A dog that snatched a cake (from
the coal on which it was baked) and carried it to a barn and
there consumed the cake and (with the burning coal stuck in
the cake) set fire to the barn, the whole for the cake, but only
one-half damage for the barn is to be paid (as explained further
on in the Gemara).
44 THE BABYLONIAN TALMUD.
GEMARA: The Mishna states a case of jumping, because
in case of falling down there is no Hability; we see then that
the Tana holds that where the beginning of an act is wilful (in
this case, allowing the goat or dog to be on the top of the roof),
but the end is only by accident (the falling down, which he could
not anticipate), there is no liability. We have so also learned
in a Boraitha: " A dog or goat that jump down from a roof
and break vessels pay the whole damage ; if, however, they fell
down there is no liability." The rabbis taught: ** A dog or a
goat that jump up from below, there is no liability; if, however,
they jump down from above there is. A human being or a cock,
however, that jump are liable in either case."
''A dog that snatched,'* etc. It was taught: R. Johanan
said: One's fire is considered one's arrow {i.e., one who allows
a fire started by him to spread and do damage is liable on the
same principle as one who shoots from a bow when the arrow does
damage). Resh Lakish, however, said: The liability is because
the fire is considered one's property. There is a contradiction
from our Mishna: " A dog that snatched a cake," etc. It
would be right according to the one who holds that one's fire is
considered one's arrow, for in this case it is the dog's arrow (and
the dog is the person's property); but according to the one who
holds that it is because the fire is considered one's property, in
this case it is the property of the owner of the dog. Resh La-
kish may say: The case was that he flung it, in which case he is
liable for the cake to the full amount; for the place on which
the coal fell to one-half (for it is unusual); and for the barn he
is not liable at all (for the liability for one's fire is because it is
his property, and in this case it is not). And R. Johanan may
explain that he placed (the cake and the burning coal) in the
usual way, and therefore for the cake and the place where the
coal lay he is liable to the full amount, but for the barn he is
liable only to one-half. Said Rabha: There are both a biblical
passage and a Boraitha in support of R. Johanan, viz., a biblical
passage, for it is written [Ex. xxii. 5]: " If a fire break out";
" break " means if it does so of itself, and still " he that kindled
the fire shall surely make restitution" [ibid.]. Hence we see
that one's fire is considered one's arrow. A Boraitha: As we
have learned: ** The passage starts out with damages done by
onQ s property (the above-quoted passage, which means ' break '
out of itself) without the aid of some person, and ends with the
damages done by one's own person : * He that kindled,' etc. [ibid,,
TRACT BABA KAMA (THE FIRST GATE). 45
ibid.], to teach that the liability for one's fire is because it is con-
sidered his arrow."
Rabha said again: It was first a difficulty to Abayi: It is
known that there is no liability for damages done by fire to con-
cealed articles; how can such a case be found in the biblical law,
according to those who hold that fire is considered one's arrow ?
Afterward he himself tried to explain it thus, that the case is
where a fire started in one court and the fence of the court fell
in, not by reason of the fire (but by some other reason), and
on account of this the fire spread to another court and caused
damage, in which case the " arrow" ceased to be such at the
boundary of the first court (for at the time the fire was started
it was unable to spread outside of the court, before the faUing in
of the fence).
If so, then the same thing may be said also in case of uncon-
cealed articles ? We must, therefore, say that the one who
holds that the liability is because it is his arrow, holds that it is
so because the same is also his property, and that in this case
he had sufficient time to repair the fence (before the fire spread)
but did not do so ; and although not liable for starting the fire,
he is liable for allowing it to spread, in which case it is the same
as if he had kept his ox in a stall without locking the door. If it
should be so, that the one who holds that the liability for one's fire
is because it is his arrow holds also of the other theory, that it is
considered his property (and if not liable for one reason is liable
for the other reason), then what is the difference between R. Jo-
hanan and Resh Lakish ? The difference is as to the liability
for the four things (see above, page 6). (According to the one
who holds that it is because it is his arrow also, there is a liabil-
ity ; and according to the one who holds that it is because it is
his property, there is none.)
For the cake, ' ' etc. , * * pays, ' ' etc. Who is liable — the owner
of the dog ? Why should also the owner of the coal not be
liable ? (For according to both R. Johanan and Resh Lakish
the liability is because it is his property, and according to R. Jo-
hanan, who holds that half must be paid for the barn, the owner
of the coal pays the other half; and according to Resh Lakish,
who holds that there is no liability at all for the barn, let the
owner of the coal be liable for the whole ?) The case is that the
owner of the coal took good care of it. If so, how could the
dog get hold of it ? The case is that the dog dug under the
door and in such a way gained access. Said Mari, the son of
46 THE BABYLONIAN TALMUD.
R. Kahana: From the fact that the owner of the dog must pay
the whole damages is to be inferred that ordinary doors are con-
sidered unsecured in regard to dogs (and it must not be consid-
ered unusual so as to pay only half).
Let us see : The Mishna states that the dog has consumed
the cake, etc. Consumed where ? If not on the premises of
the owner of the cake, why must it be paid ? This is not " in
another man's field " [Ex. xxii. 4] (which means on the premises
of the plaintiff). We must, therefore, say that it was at the
barn of the cake-owner. (From the fact that he must pay for
the cake) then infer that the mouth of an animal (consuming
something on the premises of the plaintiff) is considered as it is
yet in the court of the plaintiff. (As the case stated in the
Mishna was that the dog kept it in his mouth from the time he
picked it up until he reached the barn, and it was not consid-
ered that it was on the premises of the defendant, although the
dog was his property,) for if it would be considered as the prem-
ises of the defendant, he could say to the plaintiff : Your bread
was all the time in the mouth of my dog, which is my property,
and there it was consumed ; why, then, shall I pay ? We say
infer, because a question was actually raised as to this. And
there could no such question arise if it were certain that the
mouth of the animal is considered the premises of the defendant ;
and besides, there could arise no case in which there would be a
liability for damage by the tooth, as in order to consume it it
must necessarily be taken into the mouth. Said Mari, the son
of R. Kahana: If there could be no direct case of "tooth,"
there could arise a case which is its derivative, as, for instance,
when the animal was rubbing against the wall for her own bene-
fit and thereby did damage, or she rolled over fruits for her own
benefit, and made them dirty (which cases are derivatives of the
" tooth"). Mar Zutra opposed: But is it then not written in
the Bible that there must be complete destruction [I Kings xiv.
10]: *' Sweeps away the dung till there be nothing left"?
Which Is not the case here (as the wall or the fruit is still in
existence). Said Rabhina: It can be explained that by rubbing
against the wall she obliterated completely the engravings thereon ;
(and in case of the fruit), said R. AshI, that by rolling over the
fruits she sank them Into the mud (so that they could not be
removed).
There were certain goats belonging to the family of Tarbu that
were doing damage to the property of R. Joseph, and he said to
TRACT BABA KAMA (THE FIRST GATE). 47
Abayi: Go and tell their owners to keep them in safety. The
latter answered him : If I do so they will tell me that you should
put up a fence on your ground. [If one must put up a fence
upon his premises in order to prevent consumption of, or other-
wise damaging, his fruit, how can there be a case of liability for
damage by the ** tooth," for which the Scripture makes it plainly
liable ? That may be in case she dug under the fence or the
fence fell in in the night-time (if there was no opportunity of
repairing it).] Announced R. Joseph, and according to others
Rabba : It shall be known to all those who are ascending to Pales-
tine and to all those who are descending to Babylon that if those
goats that are kept for slaughter during the market days do
damage, their owners shall be warned twice or three times. If
they listen well and good, if not the goats are to be brought to
the slaughter-house, even before the arrival of the market days,
and the owners are to be paid their market value of that day.
MISHNA IV. : What is considered a non-vicious and what
is considered a vicious one ? A vicious ox is one that has been
warned three days. A non^vicious one is one that abstains
(from goring) for three days. Such is the dictum of R. Jehudah.
R. Meir, however, said a vicious ox is one that had been warned
thrice, and a non-vicious one is one that, when children pat him
on the back, does not gore them.
GEMARA: What is R. Jehudah's reason ? Said Abayi: It
is written [Ex. xxi. 36]: "In time past" (in the original:
*' Ml- tmol, Shilshom "). It could have been written ** tmol "
(yesterday), and then would have counted only once, but it is
written " J//-tmol " (since yesterday), therefore it signifies twice;
when '* shilshom " is added it signifies thrice, and then follows,
" and his owner hath not kept him in " [ibid.], which means
that viciousness begins upon goring the fourth time (for the
third time, however, only half is paid). Rabha, however, is not
so particular about the addition of " mi " to " tmol," and there-
fore this word signifies only once, and the word " shilshom "
signifies twice, hence " and his owner," etc., means the tJiird
time, when the ox becomes vicious, and he pays the whole
damage.
And what is the reason of R. Meir's theory ? This is ex-
plained in the following Boraithi. R. Meir said: (Draw an a
fortiori conclusion): If he gored at long intervals (only once
a day), he is considered vicious on the third time; so much the
more if he had gored thrice in one day he must be considered
48 THE BABYLONIAN TALMUD.
vicious. They rejoined : There is no conclusion a fortiori to
be drawn here, as there is a similarity in the case of a woman
who has a running issue, who is unclean for seven days only
when she notices the disease three days in succession once a
day, but if she notices it three times or more in one day she has
to wait only one day. He said again : (From this nothing can
be inferred) as the verse made this case an exceptional one by
the words '' And this,'' etc. [Lev. xv. 3], which signify that it is
so only in this case, and no others can be compared to it, for we
see that in this case the verse made it, in case of a man, depend
upon the number of times of noticing of the issue, while in the
case of a woman, it made it dependent upon the number of days.
The rabbis taught : What ox is considered vicious ? One
that has been warned for three days; and a non-vicious one is
one that is patted by children and does not gore ; such is the dic-
tum of R. Jose. R. Simeon, however, holds that a vicious ox
is such as has been warned thrice (even in one day), and the
statement as to the three days is only as to abstaining (that is,
if after having been warned three times he abstains for three
days from goring, then he is again considered non-vicious). Said
R. Na'hman in the name of R. Ada bar Ahba: The Halakha
prevails as stated by R. Jehudah in regard to a vicious ox, and
according to R. Meir in regard to a non-vicious ox, for the reason
that R. Jose agrees with them. Said Rabha to R. Na'hman:
Let the master say that the Halakha prevails according to R.
Meir in regard to a vicious ox, and according to R. Jehudah in
regard to a non-vicious ox, for the reason that R. Simeon agrees
with them in both. He rejoined : I concur with R. Jose, for he
has always his valid reasons.
The schoolmen propounded a question: The three days in
question, are they as to make the ox vicious ; but the owner
may be liable for a vicious one in one day; or are those three
days also as to the owner ? In what case can there be a differ-
ence ? If there appear three different sets of witnesses in one
day (and testify as to thre^ gorings in three days), if those
three days are as to the ox, then he becomes vicious ; but if they
are as to the liability of the owner, then the latter can say all
the three sets appear only now (and the Scripture requires that
they shall appear in three days).
Come and hear: " An ox does not become vicious until testi-
mony is given in the presence of both his owner and the court.
If in the presence of only one of them, he does not become
TRACT BABA KAMA (THE FIRST GATE). 49
vicious until it is in the presence of both. If two witnesses
testified as to the first goring, two as to the second goring, and
two as to the third (each goring being at a different place, time,
and man), we have then three sets of witnesses, but still all the
three sets are considered one as to be proved in collusion. If
one set is found collusive there is still the testimony of the
other two sets, and neither the owner is liable to pay for a
vicious one nor are his witnesses liable (to pay the other half for
viciousness). The same is if also the second set proved collu-
sive. If, however, all the three sets prove collusive, they are
all considered as one set, and all of them are to pay the one-half
for viciousness, and that is meant by the passage [Deut. xix. 19]:
Then shall ye do unto him, as he had purposed to do unto his
brother," etc. Now let us see. If the three days are as to the
ox (but the owner may become liable if testimony be given to
him thrice in one day), it is correct that the witnesses are liable
only when all the three sets proved collusive (for it may be that
the one who was injured brought all the witnesses to testify to
the three gorings, and each set knew of the other and to what
they were to testify, and therefore they cannot say that they in-
tended to make him pay only one-half) ; but if you should say
that the three days are as to the owner also, why should the
first set of witnesses (if proved collusive) be liable? Let them say
that they did not know that others would come in two or three
days later to testify as to make him vicious. Said R. Ashi:
When I read this Halakha before R. Kahana, he said to me:
Even if the three days are explained to be in regard to the ox
only, would it then be correct, for (if even the first set cannot
argue that they had no knowledge of the testimony to be given
by the others, for they knew that on their own testimony he
could not be made vicious) the last set can say: How should we
have known that all these witnesses before the court were going
to testify as to this case ; we intended to testify so as to make
him pay only one-half ? We must, therefore, say (that if the
three days refer to the ox) one set of witnesses gave the
other a hint as to what they were going to testify. R. Ashi
said : The case is that they all come together and therefore are
supposed to know of the testimony of one another. Rabhina
said : It may be that the witnesses knew the owner, but did
not know the ox (and therefore by coming to testify they
meant to make the ox vicious and must have known that there
was already testimony given). If they do not know the ox,
4
50 THE BABYLONIAN TALMUD.
how can they make him vicious ? They testify and warn the
owner that there is a " goring " ox among his cattle, and there-
fore that he should take care of all his cattle.
The schoolmen propounded the following question: For one
who sets his neighbor's dog on a third person, what is the law ?
ThQ first one is surely not liable (for he was only instrumental
in the injury), but the owner of the dog, is he or is he not liable?
Can he say: What did I do in this matter? Or can we tell him:
Having known that your dog is capable of being set on, you should
not keep him ? Said R. Zera: Come and hear. It is stated
in our Mishna: What is considered a non-vicious ox ? One who
when patted by children does not gore them, but if he does gore
he is liable (although it was caused by the patting of the chil-
dren). Said Abayi : Is this, then, so stated in the Mishna ? Per-
haps the Mishna meant that if he did gore he is no more con-
sidered entirely non-vicious, but that he is not liable for that
goring. This question remains undecided. Rabha said : If you
should say that one who sets on his neighbor's dog is liable, it
would follow that, if in such a case the dog turned on the one
who sets him on and bit him, the owner is not liable. Why so ?
As stated above, page 39, that one who does an unusual thing,
etc., which is the same in this case. The man was wrong in
setting on the dog, and the dog should not bite him. Said R.
Papa to Rabha: It was taught in the name of Resh Lakish
in accordance with your theory in the case of two cows (see
post^ page 70). Rejoined Rabha: I in such a case hold him
to liability, for the reason that we can say to him : You had
permission to step upon me, but had you then also permission
to kick me ?
MISHNA V. : "An ox that did damage on the premises be-
longing to the plaintiff," stated in Chapter I. , Mishna IV. ; how
so ? If he gored, pushed, bit, lay down on, or kicked while on
public ground, he pays half; if while on the premises of the
plaintiff, R. Tarphon holds the whole ; the rabbis, however, say
one-half. Said R. Tarphon to them : (Are we then not to draw
an a fortiori conclusion :) In a case in which the law is lenient
with the " tooth " and " foot " on public ground, making them
not liable, it decrees rigorously if the same happened on the
premises of the plaintiff, namely, that the whole must be paid ;
in a case where it decrees rigorously that the " horn " on public
ground must pay half, is it not a logical inference that we ought
to strictly adjudge the same, if on the premises of the plaintiff,
TRACT BABA KAMA (THE FIRST GATE). 51
liable for the whole ? They said to him : It is sufficient that the
result derived from the inference be equivalent to the law from
which it is drawn, viz., as if on public ground only half, so also
if on the premises of the plaintiff. He rejoined: " I also do not
infer " horn " from " horn," but I infer " horn " from " foot,"
and I reason thus: if in cases in which the " tooth " and " foot "
were dealt with leniently if on public ground, the " horn " was
dealt with rigorously, is it not a logical conclusion that the
latter shall be rigorously dealt with in cases where the former
were also so dealt with ? They rejoined again : It is neverthe-
less sufficient that the result derived from the inference be
equivalent to the law from which it is drawn.
GEMARA: Did R. Tarphon ignore the theory of " It is
sufficient," etc.? Is, then, this rule not a biblical one ? As we
have learned in the following Boraitha: " An a fortwrt conclu-
sion must be considered biblical. Where is it to be found in
the Bible ? It is written [Numb. xii. 14] : * And the Lord said
unto Moses, if her father had spit in her face would she not be
ashamed seven days ? * So much the more if it is toward the
Shekhina, it must be fourteen days ? But there is a rule that
it is sufficient that the result derived from the inference be
equivalent to the law from which it is drawn." (Hence we see
that the rule of " It is sufficient " is also biblical.) R. Tarphon
does not hold to that rule only where an a fortiori SLVgumcnt can
refute that inference, but where there is no such refutation he
does, viz., in the Bible the seven days of the Shekhina are NOT
written ; only by an a fortiori argument we set it to be fourteen
days, and therefore, by the rule above stated, we equal it to the
father's case, but in our case the half damage is written in the
Bible and applies also to the premises of the plaintiff, and by an
a fortiori argument we only add another half to it. Now if you
should apply the rule above stated, then the a fortiori argument
would be refuted entirely by it. The rabbis, however, maintain
that the seven days in case of the Shekhina ARE written in the
Bible, viz. [ibid., ibid.]: "Let her be shut up seven days."
R. Tarphon, however, may say that that is the very verse
which indicates the application of the rule of "It is suffi-
cient," etc. And v/hence do the rabbis deduce the appli-
cation of this rule ? There is another passage for that, viz.
[ibid. 15]: "And Miriam was shut up." R. Tarphon, how-
ever, may say that that other verse is necessary to indicate that
the rule of " It is sufficient," etc., is applicable in ordinary cases
52^ THE BABYLONIAN TALMUD.
also, as one might say that it is applicable to this case only
because of the honor of Moses; hence the passage.
Let the " tooth " and " foot " be liable (if they do damage)
on public ground by the following a fortiori argument : The horn
(doing damage) on the premises of the plaintiff pays only half,
still the same is the case even on public ground ; the " tooth " and
" foot," which pay the whole if on the premises of the plaintiff,
is it not logical that they should be liable on public ground ?
Therefore the Scripture reads plainly [Ex. xxii. 4] • " And they
feed in another man's field, ' ' which signifies private, but not public
ground. Do we then say that the whole must be paid (as the
tooth, to which this passage has reference), we say that one-
half should be paid ? There is another passage [Ex. xxi. 35]:
*' And divide his money," which signifies his money (of the
horn), but not the money in other cases {j.e., in other cases the
whole must be paid).
Let the " tooth " and " foot " be liable only to one-half if
on the premises of the plaintiff by the following a fortiori argu-
ment : The horn which is liable on public ground pays only
half on the premises of the plaintiff; the " tooth " and " foot,"
which have no liability at all on public ground, should they not
so much the more pay only half on the premises of the plain-
tiff ? To this the Scripture reads [ibid. xxii. 4], " make resti-
tution," which means a satisfactory payment (the whole).
Now let the horn on public ground not be liable at all by
the {oVioyNm^ a fortiori argument: The " tooth" and " foot,"
which pay the whole on the premises of the plaintiff are not
liable on public ground ; the horn, which pays only half on the
premises of the plaintiff, should it not so much the more be en-
tirely free on public ground ? Said R. Johanan : The Scripture
added [ibid. xxi. 35]: "They shall divide" (which is super-
fluous, as it was already stated before that his money shall be
divided), to signify that it is also liable on public ground.
Let a man (that kills another wilfully, but without warning,
in which case he is neither to suffer the death penalty nor to be
banished) pay a sum of money in atonement by the following a
fortiori argument : An ox which is not liable to the payment
of the four certain things (mentioned above, page 6) must nev-
ertheless pay a sum of money in atonement ; for a man who is
liable to the payment of the above four things, is it not logical
that he should be liable to the payment of a sum of money in
atonement ? To this the Scripture reads [ibid. 30], " whatever
TRACT BABA KAMA (THE FIRST GATE). 53
may be laid upon him,'' which means upon him only {ihG ox),
but not upon a man.
Now let the ox be liable to the payment of the four things
by the following a fortiori argument: A man who is not liable
to the payment of money in atonement is nevertheless liable to
the payment of the four things; for an ox, which is liable to the
payment of atonement money, is it not logical that he should
pay the four things ? To this the Scripture reads [Lev. xxiv.
19]: ''And if a man, etc., in his neighbor," which does not
mean an ox, etc.
The schoolmen propounded the following question: An ox
that steps with his foot on a child lying on the premises of the
plaintiff, what is the law in regard to the payment of the atone-
ment money ? Shall we say that it should be equal to the case
of the horn, as when the horn gores twice or thrice it is consid-
ered its habit and pays atonement money, the same shall be
applied to the foot, as it is always its habit to step? On the
other hand, can it be said that there is no similarity to the horn
because the horn gores with the intention to do damage, which
cannot be said of a foot which steps without such intention ?
Come and hear: One who leads his ox into one's court without
the owner's permission and the ox gore the owner to death, the
ox is to be stoned and his owner, whether in case of vicious-
ness or non-viciousness, must pay the full sum of atonement.
Such is the dictum of R. Tarphon. Now let us see: Whence
does R. Tarphon infer that in case of non-viciousness the full
sum of atonement money must be paid ? Is it not because he
holds with R. Jose the Galilean, who says (Text, 486) that
a non-vicious ox pays half atonement money on public ground,
and he (R. Tarphon) draws an a fortiori conclusion from the
" foot " (viz., the tooth and foot, which are not liable at all on
public ground, pay the full amount of atonement money on
premises belonging to the plaintiff, and the horn, which pays,
according to R. Jose the Galilean, half atonement money on
public ground, so much the more should be paid the full atone-
ment money on premises belonging to the plaintiff). Hence we
see that the case of atonement money applies also to the foot.
Said R. A'ha of Diphthi to Rabhina : Common-sense also dic-
tates so. For if one should think that it does not apply to the
foot, and the Tana (R. Tarphon) deduces it only from the in-
juries caused by the foot (but not from the killing) (viz., if the
foot, which on public ground is not liable for damages, pays the
54 THE BABYLONIAN TALMUD.
full damage if on premises of the plaintiff, the horn, which pays
on public ground half atonement money, according to R. Jose
the Galilean, is it not logical that on premises belonging to the
plaintiff it should pay the full sum of atonement money ?) It
could be refuted and said : As far as the damage of the foot is
concerned, it is its habit (to damage all things lying in its way
when walking), but it is not so as to killing. Infer from this
that the case of atonement money applies to the case of the foot
also, and R. Tarphon has drawn his a fortiori conclusion from
this case. And so it is.
MISHNA VI. : A human being is considered always vicious,
whether he acts intentionally or unintentionally, when awake
and also when asleep. If one blind the eye of his neighbor, or
break his vessels, he pays the whole damage.
GEMARA: The Mishna teaches if one blind the eye of
his neighbor that, as in the case of breaking one's vessels;
only damage is paid for, but not the four things; so also in
the former case only for the damage, but not the four things,
is to be paid (when done unintentionally). Whence is that
deduced (that the damage is paid for even when unintention-
ally) ? Said Hyzkiah, and so also was it taught by his disciples:
The passage says [Ex. xxi. 25] " wound for wound " (which is
superfluous, for it is stated [Lev. xxiv. 19]: "And if a man
cause a bodily defect "), to make one liable for unintentional as
for intentional damage, and for an accidental as for a deliberate
act. But do we not need this passage to make one liable for the
pain (which is one of the four things explained above) where
damages are paid ? If so, let the passage say ** wound for
wound," why then ** wound instead* of a wound " ? Infer from
this both.
Rabba said : One who carries a stone in his lap without being
aware of it, and while getting up from his seat drops it, as re-
gards damages he is liable (for there is no difference whether it
was intentional or not), but as regards the four things he is not ;
regarding the Sabbath the Scripture prohibits only intentional
work ; as to banishment (if a human being was killed thereby),
he is not liable ; as to his liability to a slave (if it fell on a slave
and blinded him), R. Simeon b. Gamaliel and the rabbis differ (as
to whether he must manumit him or not [Ex. xxi. 26]). If in
the above case he was at first aware of the presence of the stone,
* The literal translation of the text reads " a wound instead (ta'hath) a wound."
TRACT BABA KAMA (THE FIRST GATE). 55
but subsequently forgot it, as to damages he is liable, as to the
four things he is not (for the fact that he forgot it cannot be
considered wilfulness) ; as to banishment he is liable, as regards
Sabbath he is not; as regards a slave, R. Simeon b. Gamaliel and
the rabbis differ. If he intended to throw the stone two (ells)
distant and threw it four, as to damages he is liable; as to the
four things he is not; as regards Sabbath, intention is necessary;
as to banishment, the Scripture said [ibid. xxi. 13] : " And if he
did not lie in wait,'" excepting this case under discussion; as re-
gards a slave, R. Simeon b. Gamaliel and the rabbis differ. If
he intended to throw four (ells) and threw it eight (ells) distant,
as to damages he is, as to the four things he is not liable; as
regards Sabbath he is free unless he said : Let it fall wherever it
may; as regards banishment the above-quoted passage means to
except such a case as to his liability to a slave. R. Simeon b.
Gamaliel and the rabbis also differ."^
Rabba said again of one who drops his own vessel from the top
of a roof, and before it reaches the ground another person strikes
it with his cane and breaks it, the latter person is not liable, for
it is considered that he broke a broken vessel.
The same said again : One who drops a vessel from the top
of a roof upon the ground which has been covered with pillows,
and another person removes them before the dropping of the
vessel (without the knowledge of the person who drops it) and
the vessel was broken, there is no liability on the part of the
person who drops it, for at the time he dropped it he thought
it could not break, nor was the person who removed the pillows
liable, because he was only the remote and not the proximate
cause of the damage.
The same said again: If one drop a child from the top of a
roof, and before it reaches the ground another person cut it with
his sword, this is similar to the case of the following Boraitha,
in which R. Jehudah b. Bathyra and the rabbis differ: If one
was assaulted by ten different persons, no matter whether at once
or at different times, and was killed, none of them has to suffer
capital punishment, as according to the Scripture it must be
known who was the cause of the death. R. Jehudah b.
* In the last two cases there is only a difference as regards Sabbath. In the first
case, even if he said, " Let it fall wherever it may," there is also no liability, for the
Scripture requires that it should be intentional work, and in the first case the distance
is so small that there can be no question as to his intention to do work. — Rashi.
56 THE BABYLONIAN TALMUD.
Bathyra, however, holds, in case the assault was made by one
after the other, that the last one is guilty, for he hastened his
death (and this rule can be applied to the above case of the
child).
If (in the case of the child) a vicious ox killed it with his
horns before it reached the ground, this is similar to the case of
the Boraitha {post, pages 90 and 91) in which R. Ishmael, the son
of R. Johanan b. Broka, and the rabbis differ.
The same also said : One who falls from the top of a roof by
an extraordinary wind and does damage, or falls on a woman and
causes her shame, is liable for the damage, but not to the four
things. If, however, it happen by an ordinary wind and causes
damage or disgrace to a woman by falling on her, he is liable for
all the four things except for the disgrace.
Lastly Rabba said : One who causes the death of another by
placing live coals upon his (bare) breast has no liability (for the
deceased could remove them); if he placed the coals upon
another one's clothes and they were burned he is liable (because
the moment the live coal was placed on the clothes the latter
were at once damaged).
[Said Rabha: Both these cases are explained in Mishnayoth.
The first one in Tract Sanhedrim, Mishna II., and the second
in this tract, Chapter VIII., Mishna 5.] He, however, pro-
pounded the following question: If one placed a live coal upon
the breast of his neighbor's slave is the slave considered in such
case as his own body (and there is no liability, for the slave
should remove it), or is he considered only his property (and he
is liable) ? And if one should say that a slave is considered the
body of his master, what is an ox under such circumstances con-
sidered ? He subsequently solved it himself. A slave is con-
sidered one's body, and an ox is considered one's property (and
there is liability in the latter case, for the ox cannot remove it).
CHAPTER III.
RULES CONCERNING PLACING VESSELS ON PUBLIC GROUND. INJURIES
CAUSED BY PEDESTRIANS TO EACH OTHER WITH THEIR LOADS.
THE VICIOUS AND NON-VICIOUS OXEN— IF THEY HAVE DONE
INJURY TO EACH OTHER OR TO HUMAN BEINGS, ETC.
MISHNA /. : If one places a jug on a public ground and
another person stumbles over it and breaks it, the latter is not
liable; if he is injured, the owner of the barrel is liable for the
damage.
GEMARA : The Mishna starts out with " jug " and ends with
" barrel," and it is the same way in several subsequent Mishnas.
Said R. Papat Jug and barrel are one and the same thing (as to
the cases cited). (If so) for what purpose did the Mishna change
the terms ? For business transactions {e.g., if one sells barrels
he may deliver jugs, and vice versa). How is the case ? Shall
we assume in the case of a certain locality where these terms are
decidedly distinct, then jug is one thing and barrel another ? It
is only in the case where most of the people use those terms
distinctly and separately, but there is also a small portion who
use them interchangeably, in which case I would say that the
majority is to be followed; hence the statement that in money
matters the majority is not to be followed (but the burden of
proof is on the plaintiff).
" And another person;' etc. Why is he not liable— must he
then not look out ? Said the disciples of Rabh in his name :
The Mishna speaks of a case where he filled up the whole thor-
oughfare with barrels. Samuel said : When it is done in dark-
ness. R. Johanan, however, said : The Mishna may be explained
in that he placed the jug in a corner (where it could not be
noticed). Said R. Papi : Our Mishna cannot be explained un-
less according to Samuel's or R. Johanan 's interpretation, but
not according to Rabh, because if it should be according to
Rabh's interpretation he would not be liable if even he should
break the barrel intentionally, as he had no passage way. (The
Gemara, however, says that it can be explained also according
S8 THE BABYLONIAN TALMUD.
to Rabh's interpretation, as R. Zbid in the name of Rabha ex-
plains it further on.) Said R. Aba to R. Ashi : In the West it
was said in the name of Ula that the reason for the statement of
the Mishna is that pedestrians are not in the habit of looking
around.
Such a case happened in Nahardea, and Samuel held him
liable. In Pumbeditha — and Rabba held him liable. It is cor-
rect of Samuel, for he follows his theory; but Rabba, shall we
assume that he concurs with Samuel ? Said R. Papa: It was in
a corner of an oil-mill (and it was customary with those who
came to the mill to place their vessels outside when waiting for
their turn to enter the mill), and because it was customary to
place there the vessels the pedestrian had to take care not to
break them. R. Hisda sent the following message to R. Na'h-
man : " It was said (it is the custom of the judges to fine) one
who kicks the other with his knees three (selas) ; one who kicks
the other with the foot, five; one who strikes the other with his .
fist, thirteen — what is the fine if one strikes his neighbor with
the handle of a hoe or with the iron of the hoe ? " He returned
the following answer: " Hisda, Hisda, you are collecting fines
in Babylon; state to me the facts in the case." He then sent
him the following facts: There was a partnership water-basin
out of which each of the partners irrigated his land every second
day. Once one was irrigating his land from the basin when it
was not his turn, and when the other one asked him why he did
so and the former did not heed him, he struck him with the
handle of the hoe. Said he (R. Na'hman) to him (R. Hisda):
He would have been justified if he had even struck him a
hundred blows, for even according to the one who holds that a
man ought not to take the law into his own hands, in cases of
loss one may do so, for when one is in the right he need not
trouble himself (to go to court). And R. Na'hman says this,
according to his theory which was taught elsewhere, that a man
may take the law into his own hands even not in case of loss.
According to R. Jehudah, however, this is permitted only in
case of loss. R. Kahana objected: There is aTosephtha: " Ben
Bag Bag says: Do not enter the courtyard of thy neighbor
secretly to take what belongs to you, for fear that he may
look upon you as upon a thief, but do so publicly, and tell him
that you take your own (in contradiction to R. Jehudah, who
holds that one must not take the law into his own hands)." R.
Jehudah rejoined: Your support, Ben Bag Bag, is an individual,
TRACT BABA KAMA (THE FIRST GATE). 59
and the majority differ with him. R. Janai, however, explained
that " take it publicly " means to do so with the aid of the law.
Come and hear: If an ox mount another to kill him, and
the owner of the latter come along and pull out his own ox,
and the former drop on the ground and is killed, he is not
liable. Shall we not assume that this is in the case of a
vicious ox, in which case there is no loss (for if he had not acted
thus, and his ox should have been killed, he would have been
paid in full; hence even where there is no loss one may take
the law into his own hands) ? Nay, it is in case of a non-
vicious ox where there is loss (for if he should have waited to be
paid by law, he would have received only one half). If so, how
is the latter part of the Boraitha: " If, however, he pushed
down the ox that mounted, and the ox was killed, he is liable."
Now, if it is in case of a non-vicious ox, why should he be liable
(there is loss, and he acted according to law) ? Because he should
have pulled out his own ox and not pushed the other so as to
kill him.
Come and hear : " For one who obstructs the court of another
by placing there jugs of wine and oil, the owner of the court
may break the jugs while going in and out of the court."
(Hence we see that one may do so although there is no loss ?)
Said R. Na'hman bar Itzhak: It means that he may break them
while going out to go to court and also when coming in to get
his documentary evidence (in case such is necessary; e.g.^ when
there is a dispute as to the ownership of the courtyard).
Come and hear the statement of our Mishna : ' * One who places
a jug," etc., "he is not liable." The reason being that he
stumbled over it, but if he broke it without stumbling over he
is liable. (Hence we see that even when there is loss [for Rabh
explained, above, this to be when the whole thoroughfare has
been filled with jugs] no person is allowed to take the law into
his own hand.) Said R. Zbid, in the name of Rabha: Nay, the
same is the case even if he broke it intentionally, but the reason
why he mentioned stumbling is because he had to state In the
latter part that if he was injured the owner of the barrel is liable,
in which case stumbling is essential, for if otherwise he himself
caused his own injury; he mentioned that also in the first part.
Come and hear: ** It is written [Deut. xxv. 12] : * Then shalt
thou cut off her hand * ; this means that a fine of money shall
be imposed upon her." May we not assume that this is only
when she could not save herself otherwise ? (Hence one may
6o THE BABYLONIAN TALMUD.
take the law into his own hands ?) Nay, that means when she
could do otherwise. Then how is the case when she could not —
is she free ? If so, instead of the Boraitha stating in the latter
part: It is written [ibid, ii]: "If she putteth forth her hand,"
this signifies to exclude the messenger of the court, if he has
done a similar thing he is free (from paying for disgrace), let
the Boraitha teach that there is a difference also in her own act ;
viz., the case is when she could save herself otherwise, but if
she could not she is free? The Boraitha maintains thus : The
case is when she could save herself otherwise, but if she could
not, her hand is to be considered as a messenger of the court
and she is free.
Come and hear: ** One who set aside the due corner-tithe at
one corner of his field and the poor came and took their due share
at another corner, both are considered corner-tithe." Now if
you should say that one may take the law into his own hands,
let the owner prevent them from taking at another corner by
force ? Said Rabha: The expression that " both are corner-
tithe " means only that both are free from tithe (given to the
Levites), as we have learned in the following Boraitha: " One
who renounced his ownership to his vineyard and then hast-
ened in the morning and plucked the fruit himself, he must o\>-
SQVVQ peret [Lev. xix. i6], gleanings [Deut. xxiv. 2i\ peah [Lev.
xix. 9], and forgotten heaves [Deut. xxiv. 19], but he is free,
however, from the Levites' tithe.
MISHNA //. : A jug (filled with water) that broke on pub-
lic ground and its contents cause a person to slip and fall, or one
is injured by its fragments, he (the carrier of the jug) is liable.
R. Jehudah, however, says, if he break it intentionally he is,
otherwise he is not.
GEMARA: Said R. Jehudah in the name of Rabh : It was
taught only if he soil his clothes with the contents of the jug,
but if he damage his person there is no liability, for the public
ground (which has no particular owner) causes his damage.
When I stated this before Samuel he said to me : Let us see ; as
to the liability for damage caused by one's stone, knife, or load
(placed on public ground), we deduced it from the "pit" on
public ground, as explained /^j"/, page in (in which the Scrip-
ture reads "■ ox " and " ass "), and in all of them I read ** an ox,
but not a human being" ; " an ass, but not vessels," and only
as far as death is concerned (as the Scripture in this case speaks
of death); as to damage, however, if to person there is, but if to
TRACT BABA KAMA (THE FIRST GATE). 6i
property there is no liability on the part of the one who placed
them there. (Hence Samuel's theory is the reverse of that of
Rabh.) What has Rabh to say to this ? This (that we deduce
all that from " pit ") is only where he had renounced his owner-
ship from them (as such is the case with the pit on public ground),
but if he had not it is still his property (and we deduce his
liability from the "ox"). R. Oshyiah objected: (There is a
Boraitha:) It Is written [Ex. xxi. 33]: " And an ox or an ass
fall therein," and we say an ox, but not a human being; an
ass, but not vessels ; and from this it was said that if an ox
or an ass laden with vessels fell into the pit and they were
broken, he is liable only for the injuries to the animal, but not
for the damage to the vessels. Similar to this is his stone,
knife, and load placed on public ground that cause damage.
Therefore if one break his glass vessels by striking them against
the stone so placed, he is liable. Now the first part of the Bo-
raitha would be in contradiction to Rabh, who holds him liable
for the vessels also, and the latter part (which treats of breaking
glass vessels by striking them against the stone) would contra-
dict Samuel ? [Why would this be a contradiction only to those
two ? Do, then, those two parts of the Boraitha itself not contra-
dict each other ? Say, then, that Rabh would explain the Bo-
raitha in accordance with his theory that he renounce owner-
ship, and Samuel according to his theory stated above.]
Now, when we come to the conclusion that one's stone,
knife, or load is equal to one's ** pit," according to R. Jehudah,
who holds that there is a liability for damages done to vessels
by falling into a pit, if one strike his bottle against a stone he
is liable. Said R. Elazar: Thou shouldst not think that he is
liable only when both the stumbling and the breaking were
caused by the stone, and not if only the breaking was caused by
the stone, as in reality he is liable even in such case, as we con-
cur with R. Nathan's theory (which is explained on page 120).
'' If intentionally,'' etc. What means intentionally? Said
Rabba, when he intended to lower them down from his shoulders
(and while doing so they struck against the wall, he is liable, for
his carelessness is considered a deliberate act). Said Abayi to
him: Should we infer from this that R. Meir (who is very rigor-
ous) holds that one is liable even if the jug dissolve of itself
(although it is an accident) ? He answered : Yea, R. Meir holds
one liable if even only the handle remained in his hand. Why
so ? Is this not an accident, and being such, the Scripture frees
62 THE BABYLONIAN TALMUD.
him from liability, as it is written [Deut. xxii. 26]: ** But unto
the damsel shalt thou not do anything" ? And if you should
say that this is only as regards capital punishment, but as re-
gards damages one is liable, have we not learned in a Boraitha:
" If his jug break and he fail to remove the fragments, or if
his camel fall and he fail to raise it, R. Meir holds him liable
for the damage they cause ; the sages, however, hold that he is
free from human justice and is liable only to heavenly justice;
and the sages concede to R. Meir, where one places his stone,
knife, or load on the top of a roof, and they are blown down by
an ordinary wind and do damage, that he is liable ; on the other
hand, R. Meir concedes to the rabbis that, where one places
jugs on the roof in order that they should dry, and they are
blown down by an extraordinary wind and do damage, he is
free" (because it is an accident; hence even according to R.
Meir damages by an accidental act are excusable)? Therefore
said Abayi: They differ (in our Mishna) in two cases: during
the falling and after the vessels rested upon the ground ; one
holds that for stumbling while falling he is liable for careless-
ness, and the other one holds that it is an accident. And they
also differ after the resting of the vessels, in case he renounce
his ownership to the articles which caused the damage ; one
holds him liable even in such a case, and the other one holds
him free. And wherefrom is such a theory ? From the fact that
the Mishna mentions two cases, viz. : ** If he slipped on account
of the water, or he was injured by the fragments," which is prac-
tically one and the same thing, we must say then that it means
either when he slipped on account of the water while falling or
that he stumbled over the fragments after they rested. But how
is it with the above Boraitha, can you apply also to it the same
interpretation ? This would be correct regarding the jug con-
taining water, but how can we find the above two cases in regard
to the camel, as you cannot hold one liable for the stumbling of
his animal, even in a case where one is held liable for his own
stumbling ; and if there should be a liability it should be only
in one case, namely, if he renounced his ownership to the
carcass ? Said R. A'ha : It can be explained that the camel
stumbled by reason of the overflow of a river. How is the
case ? If there was another way, then he is surely liable ; if there
was no other way, is it not accident ? Therefore it must be ex-
plained thus : that he himself stumble first and the camel
stumble over him, in which case his stumbling is considered
TRACT BABA KAMA (THE FIRST GATE). 63
carelessness. But (according to R. Jehudah, who requires in-
tention in our Mishna in case one renounce ownership from his
articles which caused damage) what intention can there be so
that he should be held liable ? Said R. Joseph, and so also said
R. Ashi : If his intention was that he should regain ownership
of the fragments. R. Elazar also holds that they differ even
during the falling and concurs with Abayi's theory stated
above.
R. Johanan, however, said that they differ only as to after
they rested, and he comes to teach us that only in this particu-
lai case the rabbis freed him from liability if he renounced his
ownership to the articles which caused the damage because it
was accidental (but where there is no accident he is liable for
renouncing his ownership).
It was taught: "One who renounces ownership to his
articles that cause damage, R. Johanan and R. Elazar: one
holds him liable and the other holds him free." Shall we
assume that the one who holds him liable is in accordance with
R. Meir and the other one is in accordance with the rabbis ?
Nay, as to R. Meir, all agree (that he is liable) ; they only differ
as to the rabbis : the one who holds him free concurs with the
rabbis, while the one who holds him liable may say : I say that
even the rabbis who held him free do so only in the case of an
accident, as stated above, but in other cases they also held him
liable. There is ground for the supposition that it is R. Elazar
who holds one liable. (See Pesachim, page 8, line 22, " Two
things," etc.) Have we not heard from him concerning the fol-
lowing Mishna (above, page 30, end) : * * One who stirs up manure, * '
etc., that it is so only in case he had an intention to claim it as
his own, but otherwise he is not ; hence we see that Elazar holds
that if one renounce ownership to his articles which caused
damage he is exempt. Said R. Adda bar Ahba: The case here
is that he restored it to its original position. Said Rabbina :
The case as explained by R. Adda bar Ahba is similar to one
who finds an uncovered pit and he covers it and then again re-
moves the cover (in which case he is not liable, for it is consid-
ered as if he never had anything to do with it). Said Mar Zutra,
the son of R. Mari, to Rabbina: I fail to see any similarity. In
the case of the pit the former act (the uncovered pit) is still as
it was, while in the case of manure the act of the first one is
no more in existence (because the place it first occupied is now
vacant). If it has any similarity to a pit it is in case one find
64 THE BABYLONIAN TALMUD.
an uncovered pit and stuff it up, and then again dig it out,
in which case the former act disappears entirely and is wholly
his work (and therefore he is liable). Therefore said R. Ashi
that the case of manure was that he stirred it up less than three
spans (and therefore it is considered no stirring up at all [because
of Lavud; see Sabbath, page 12], and whereas he had no intention
of exercising any act of ownership, it cannot be considered his
property, and if we cannot hold him liable as being his prop-
erty, we can also not hold him liable for digging a pit). And
why does R. Elazar force himself to explain it where he stirred
it up below three, and the reason is only because he in-
tended it as an act of claiming ownership, but not otherwise ; let
him explain it that it was above three, and although there was
no intention of claiming ownership he is nevertheless liable ?
(Because he holds that one who renounces ownership to the
articles which cause damage is liable.) Said Rabha: He did so
because of the phraseology of the Mishna, viz. ; Why " stirred "
up — why not" lifted " up ? Hence that " stirring " means below
three spans.
Now when we come to the conclusion that it is R. Elazar
who holds him liable, then it is R. Johanan who holds him free.
Does then R. Johanan really hold so ? Did he not say else-
where that the Halakha prevails as an anonymous Mishna, and
there is such a Mishna: " One who digs a pit on public ground
and an ox or an ass falls into it and is killed, he is liable " ? We
must, therefore, say that R. Johanan holds that he is liable.
Now, on the other hand, if R. Johanan holds that he is liable,
then R. Elazar holds that he is not ; but has not R. Elazar said
in the name of R. Ishmael (Pesachim, page 8, "Two Things,"
etc., hence, that he holds that he is liable ? These present no
difficulty. What is stated here is his own, and that in Pesachim
is his teacher's opinion.
MISHNA ///. : One who empties water into public ground
and causes injuries thereby, he is liable for the injuries. One
who hides away a thorn or glass, or one who builds his fence of
thorns, or a fence that falls in into public ground and some
persons were injured thereby, he is liable for the damage.
GEMARA: Said Rabh : It was taught only if his vessels
were soiled, etc. (see page 60). Said R. Huna to Rabh: If this
should be considered even his mud (he ought to be liable) ? Re-
joined Rabh : Do you understand that the water was not ab-
sorbed ? I mean when it was absorbed, and yet he injured him-
TRACT BABA KAMA (THE FIRST GATE). 65
self by the collected earth, and therefore there is no liability, for
he should have been careful.
[Why did Rabh repeat his statement here ? He said that
already in connection with the preceding Mishna.] This was
necessary: Once as to the sunny season and once as to the rainy
season, and it is in accordance with the following Boraitha:
" Although it is permitted during the rainy season to empty
refuse-pipes and clean excavations, still it is not permitted to
do so during the sunny season; and even in the rainy season,
although they do it with permission, they are liable for the
damage they cause."
'* One who hides away,'' etc. Said R. Johanan: It was
taught only in case it is jutting out, but if it is pressed in he is
free. Why is he not liable even when it is pressed in ? Said
R. A'ha, the son of R. Ika: For the reason that it is not the cus-
tom of man to rub against the wall. The rabbis taught : One
who hides away his thorns or glass in the wall of his neighbor,
and the owner of the wall comes along and pulls down the wall
and the thorns or glass falls into the public ground and does
damage, the one who hid them away is responsible. Said R. Jo-
hanan: This is the case where the wall was in bad condition,
but where the wall was in good condition the owner of the wall
only is liable. Said Rabhina: It is to be inferred from this
that if one covers his well with the pail of another, and the owner
of the latter comes along and carries away his pail, the former
is liable (if some accident occurs). Is this not self-evident ?
Lest one say that because the owner of the wall did not know
who hid the thorns and could not inform him to remove them,
therefore he is free; but in case of the well, as the owner of the
pail knows him, he should have informed him that he took away
the pail, and therefore the owner of the well should be free — he
comes to teach us that there is no difference.
The rabbis taught : The former pious men used to bury their
thorns and broken glass in their fields three spans below the
surface in order that they should not interfere with the plough.
R. Shesheth used to burn them. Rabha used to throw them
into the (river) Chiddekel. Said R. Jehudah : One who wishes
to be pious should observe the laws of damages. Rabhina said:
He should observe the teachings of the fathers (which were
enumerated in the first tract of this section).
MISHNA IV. \ One who places straw or hay on public
ground in order to convert them into manure, and some pedes-
5
66 THE BABYLONIAN TALMUD.
trian sustains injury through them, he is liable; and the one
who takes possession of them first is entitled to them. R.
Simeon b. Gamaliel says: All those who obstruct a public thor-
oughfare by placing chattels therein and cause damage are liable;
and the one who takes possession of them first is entitled to
them. One who stirs up manure on public ground and a pedes-
trian sustains injury thereby is liable.
GEMARA: Shall we assume that our Mishna is not accord-
ing to R. Jehudah of the following Boraitha: " R. Jehudah
says: During the season of conveying manure one may remove
his manure to the public highway and collect it there for thirty
days in order that it should be trodden by man and animal, for
on this condition did Joshua distribute the land " ? It can be
explained that R. Jehudah concedes that nevertheless he is
liable for the damage.
(There is an objection.) Come and hear: " All those of
whom it was said that they may obstruct the public highway, if
they do damage they are liable; according to R. Jehudah, how-
ever, they are not." Said R. Na'hman : Our Mishna treats of
the season when the manure is not conveyed, and it is according
to R. Jehudah. R. Ashi, however, says: Our Mishna states
" straw " and " hay " (which means before they were converted
into manure, and the reason is) because they are slippery.
" Tke one who takes possession of them,'" etc. Rabh said:
This applies to both the original substance as well as to its
improvement. Zeira, however, holds that it applies to the im-
provement only. What is the point of their difference ? Rabh
holds that the original substance is also to be confiscated (as a
fine) because of the improvement, and Zeira holds that only the
improvement is to be confiscated. There is an objection from
the clause of our Mishna : " One who stirs up manure," etc.,
and does not mention that the one who takes possession of it
first is entitled to it. (Hence it contradicts Rabh.) Said R.
Na'hman bar Itzhak: You quote a contradiction (to Rabh) from
the subject of manure. In cases where there can be an im-
provement {e.g., straw) the original substance was also subjected
to the rule as a fine, but where there can be no improvement
(e.g., manure) there is no fine at all.
The Schoolmen propounded a question: According to the
one who holds that the original substance is to be fined because of
the improvement, is it to be fined at once or only after the im-
provement has taken place ? This can be inferred from the fact
TRACT BABA KAMA (THE FIRST GATE). 67
that it was attempted to contradict Rabh from "manure"
(which does not improve; hence that he is to be fined at once).
What answer is this ? Did not the Schoolmen propound their
question after they heard of R. Na'hman's answer, and never-
theless they were doubtful ? Shall we assume that in this case
theTanaim of the following Boraitha differ ? " One who removes
his straw and hay to a public highway to convert it into manure,
and a pedestrian sustains injuries, he is liable, and the one who
takes possession of them first acquires title to them, and if one
takes them it is considered robbery. Rabban Simeon b. Gama-
liel, however, holds that all those who obstruct a public high-
way and cause damage thereby are liable to pay the damage,
and the one who lays his hand upon the articles of obstruction
first acquires title to them, and it is not considered robbery."
Let us see. How is this Boraitha to be understood ? It reads
that the one who lays his hand on the articles of obstruction first
acquires title to them, and immediately thereafter it states that
the one who takes them is guilty of robbery. It must, there-
fore, be explained thus: " One who lays," etc., acquires title to
the improvement, but the original substance is prohibited as
robbery, and R. Simeon b. Gamaliel, however, says the same is
the case also with the original substance. According to Zeira
surely the Tanaim differ in this case, but according to Rabh
do they also differ ? Rabh may say that all agree that the fine
applies to the original substance on account of the improvement,
but in what they differ here is, whether this Halakha should be
put into practice or not. As it was taught: " R. Huna said in
the name of Rabh: The Halakha is so, but it is not applied in
actual practice. R. Adda bar Ahbah, however, holds that it is
applied in practice." But this is not so, for R. Huna once
declared peeled baley (placed by one on public ground to dry
it) ownerless, R. Adda bar Ahbah did the same with date-husk.
It was correct for R. Adda bar Ahbah, as he followed his theory
(stated above), but shall we assume that R. Huna retracted from
his statement above ? Nay, in this case the owners were warned
(several times).
MISHNA V. : Two potters (each carrying pottery) that
walked, one following the other, and the first stumbled and
fell, and the second stumbled over the first and also fell, the
first one is liable for the damages of the second.
GEMARA: Said R. Johanan : It is not to be said that our
Mishna is only according to R. Meir, who holds that stumbling
68 THE BABYLONIAN TALMUD.
is considered wilful and therefore he is liable, but even
according to the Rabbis who hold that it is an accident and he
is free. Here, however, the case is different, for he had to get up
(at once) and he had not done so. R. Na'hman bar Itzhak,
however, holds that if he even could not get up he is liable, be-
cause he had at least to give warning to the other, which he had
not done. R. Johanan, however, denies this theory, for if he
could not get up he could also not give warning (because of his
excitement).
There is an objection from the following Mishna: " If one
carrying a barrel followed one carrying a beam, and the barrel
was broken by the beam, he is free, but if it broke because the
carriers of the beam stopped, he is liable." Is it not to be
assumed that he stopped in order to place the beam on the other
shoulder, which is usually done, and still it is said that he is
liable, because he should give warning ? Nay, he stopped to
rest. But how is it in the former case, is he free ? Then the
Boraitha should state that it is only when he stopped to rest,
but if to place it on the other shoulder he is free. Why then does
it state in the latter part that he is free only if he told him to
stop with the barrel ? With this he comes to teach us that,
although he stopped to rest, if he called to him to stop he is
free.
Come and hear: ** Potters and glaziers that walked, one
following the other, and the first one stumbled and fell, and
the second one stumbled over him and the third over the
second one, then the first is liable for the damage of the
second and the second is responsible to the third. If, however,
they all fell on account of the first one, he is responsible for the
damage of all ; but if they warned each other they are not re-
sponsible." Is this not so even if they could not get up ? Nay,
they could get up, and it comes to teach us that even in such a
case when they warned each other they are free.
Said Rabha (in explanation of the above Boraitha): "The
first one is liable to the second one for both injuries to the per-
son and to property. The second, however, is liable to the
third one for personal injuries only." [How is this to be under-
stood ?] If stumbling is considered a wilful act, let the second
one also be liable; if, on the other hand, stumbling is considered
an accident, then let the first one also be free. The first one is
considered wilful as it is equal to a "pit on public ground," in
which case the digger is liable for both injuries to the person
TRACT BABA KAMA (THE FIRST GATE). 69
and to property; the second, however, who is considered as if
he liimself has fallen into the pit (because of the stumbling of the
first) can be liable only for personal injuries because he did not
get up in time, but not for damages to property, as he can say
that he did not dig the pit.
The Master said: If they all fell because of the first one, the
first is liable for the damage of all of them. How was the case ?
R. Papa said: He obstructed the way (crosswise) like a carcass
(which obstructs the whole way). R. Zbid, however, said : If
such should be the case the first one would not be liable for the
damages of the third, who should be careful, seeing that the sec-
ond one stumbled over the obstruction of the whole thorough-
fare; therefore he maintains that the first one fell diagonally
and did not obstruct the whole thoroughfare, and the third one
in his intention to walk on the unobstructed portion of the thor-
oughfare did not see the stumbling of the second and stumbled
over him.^
MISHNA F/. : If one was coming from one side of the
street carrying a barrel, and the other one was coming from the
other side carrying a beam, and the barrel was broken by the
beam, there is no liability, as both had the right to go each his
way (and the carrier of the barrel should be careful not to collide
with the beam). The same is the case when the carrier of the
barrel followed the carrier of the beam. If, however, the carrier
of the beam stopped (without any reason), and the carrier of the
barrel while walking broke it by striking against the beam, he
is liable ; if the carrier of the barrel was told to stop by the car-
rier of the beam he is free. If the carrier of the barrel was pre-
ceding, and the carrier of the beam was behind him and broke
his barrel by colliding with the beam (although unintentionally),
he is liable (because of carelessness) ; if the barrel carrier stopped,
he is free ; but if he told him to stop and the beam carrier did not
heed him, he is liable. The same is the case with one carrying
fire and the other hemp.
GEMARA: Rabba bar Nathan questioned R. Huna: When
one injures his wife by having intercourse with her, how is the
law: is he free because he has done it with permission, or is he
* The text reads, " as the cane of a blind one," and Rashi explains it, that when
feeling the way with his cane, the blind man places it wherever it happens, longwise
or crosswise. The above explanation, however, which is more lucid, is according to
Tosphath.
70 THE BABYLONIAN TALMUD.
nevertheless liable because he had to look out for her health ?
And he answered: This we have learned in our Mishna: " He
is free, as both had the right to go each his way." Said Rabha
to the latter: Is there not to be drawn an a fortiori conclu-
sion from a wood [Deut. xix. 5] in which case both had permis-
sion to enter, and nevertheless when one was injured or killed,
it is considered that the defendant entered the plaintiff's prem-
ises, and he is responsible or guilty; so much the more here it
must be considered that he entered upon her premises and in-
jured her ? [But did not the Mishna state that each of them
had permission to go his way ? There is no similarity. In the
case of the Mishna both had equal permission, and each of them
did the same thing the other did, but here only he acted but she
did nothing. Is that so ? Did not the Scripture say plainly
[Lev. xviii. 29]: " Even the souls that commit them shall be cut
off " ? Hence we see that the Scripture considers the female
also as acting. There both of them derive pleasure and therefore
are punished, but here the act is only his.] Resh Lakish said:
If there were two cows on public ground, one of which was lying
and the other one walking, and the latter kicked the former, she
is not liable ; if, however, the reverse was the case she is liable.
(This was explained above, page 50.)
MISHNA VIL\ Two that were on public ground, one run-
ning and the other one walking (ordinarily), or both of them
running, and they injured each other, both are free.
GEMARA: Our Mishna is not according to Issi b. Jehudah
of the following Boraitha: " Issi b. Jehudah says: The one who
was running is liable, for it is uncommon. He, however, con-
cedes that if it was on the eve of Sabbath in twilight, that he is
not liable, for he is permitted at that time to run (and therefore
it is considered common)." Said R. Johanan: So the Halakha
prevails. But has not R. Johanan said elsewhere that the
Halakha prevails according to an anonymous Mishna, and our
Mishna (which is anonymous) states not so ? The case in our
Mishna is to be explained in that it speaks of the twilight on the
eve of Sabbath, from the fact that it states, ** or they were both
running they are free." Then without the above explanation it
would be superfluous after the statement that if even only one
was running, etc., for it is self-evident that if both were running
that so much the more they ought to be free; therefore the
Mishna must be considered as incomplete, and should read thus:
If one was running and the other one was walking, there is no
TRACT BABA KAMA (THE FIRST GATE). 71
liability, when the case was in the twilight of the eve of Sab-
bath ; on a week day, however, the one running is liable; if
both were running they are free, even on a week day.
The Master said: ** And Issi concedes that if it was in the
twilight of the eve of Sabbath he is free, for he did so with
permission." What is the permission ? It is according to R.
Hanina, who used to say: Come with us to meet the bridal
queen. And according to others, " to meet the Sabbath bridal
queen." R. Janai used to get up, enwrap himself and say:
Come bride, come bride! (Hence it is a merit to run at twi-
light on the eve of Sabbath to meet the Sabbath.)
MISHNA VIII. : One who chopped wood on public ground
and caused damage on private ground, or vice versa ; or on his
own private ground, and has done damage on another's private
ground, he is in either of those cases liable.
GEMARA: And all the three cases were necessary to be
mentioned, for if the Mishna should state the case of one who
chopped wood on his own private ground, and did damage on
public ground only, one might say that the liability is because
on a public thoroughfare there are usually many passers-by ; but if
vice versa there is no liability because on private premises there
are not many people. And if it should state the case of public
to private ground only, one might say that the liability is be-
cause he had no right to chop wood there, and as he did that
without permission he is liable, but from private to public
ground, where he had a right to do so, there is no liability even
if it caused damage on public ground. And if it should state
these two cases only, still one might say that in one case he is
liable, for he has done it without permission, and in the other
case because there are many persons, but from one private ground
to another, where usually not many people are, and each owner
is permitted to do such a thing on his own premises, there
is no liability, therefore it was necessary to mention all. The
rabbis taught: "One who enters a carpenter's shop without
permission, and was struck on his face by a flying splinter and
died, there is no liability. But if he entered with permission
the carpenter is guilty." Guilty of what ? Said R. Jose b.
Hanina: It means the liability to pay the four certain things,
but he is free from banishment, for it is not equal to the case of
a forest, which is considered the ground of every one who enters
it, but in this case he entered his neighbor's estate. Said Rabha:
Is not the following a fortiori conclusion to be drawn here : A
72 THE BABYLONIAN TALMUD.
forest, where each one enters by his own will (without the permis-
sion of the other), still it is considered as if he entered by the
request of the other, and he is to be banished (in case he kills
one unintentionally) ; in the case at bar, where he decidedly
enters by the request of the other, shall he not so much the
more be banished ? Therefore wc must explain the Boraitha
thus: He is free from banishment means that this alone would
not be sufficient, and the reason of R. Jose b. Hanina is that it
is such an act of negligence that almost amounts to an inten-
tional act (for he should look out).
An objection was raised from the following: " One who
throws a stone into a public ground and kills some one, he is
to be banished." Is this not such a negligent act as almost
amounts to an intentional act, for he had to have in mind that
on public ground people come and go, and still it says that he
must be banished. Said R. Samuel bar Itzhak. The case is that
he was tearing down his wall and threw the material into rubbish
in the daytime. What was the nature of this rubbish ? Was it
such rubbish as people are likely to be about, then it is inten-
tional ? If not, then is it an accident ? Said R. Papa: The case
is that it was rubbish that people do their necessities thereon in
the night-time, but not in the daytime, but still it may happen
that some might do so in the daytime; it cannot be considered
an intentional act, for it is uncommon to do so in the daytime,
and, on the other hand, it is also not an accident, for it may
happen.
R. Papa in the name of Rabha explained that R. Jose b.
Hanina's statement has reference to the first part only, viz. :
" One who enters a carpenter's shop without permission, and was
struck in the face by a flying splinter and died, the carpenter is
free." Said R. Jose b. Hanina: He is liable to pay the four
things, but he is free from banishment (and the difference is
thus): That he who explains that it refers to the latter part of
the above Boraitha, so much the more as to the first part ; but
according to R. Papa, he who explains that it refers only to the
first part, in the latter part where he entered by request he is
to be banished. Is that so ? Have we not learned in the fol-
lowing Boraitha: ** One who enters a blacksmith's shop and was
struck by an escaping spark and died, there is no liability,
even if he entered with permission" ? The case here is that
it was the blacksmith's apprentice. Assuming that it is so,
may he be killed ? It was that his employer insisted that he
TRACT BABA KAMA (THE FIRST GATE). 73
should leave the shop, and he did not do so. Supposing it
so, may he be killed ? The employer thought that he did
leave. If so, then any person would come under the same rule.
In the former case the apprentice usually obeys his employer
(and therefore the blacksmith assumed that he left when being
told to do so), but in the case of a stranger the blacksmith should
look around and see whether tlie stranger did leave or not.
R. Zbid in the name of Rabha supported the above state-
ment by the expression of the verse, viz. [Deut. xix. 5]: "It
(the iron) found," "^ but not when he snakes himself found to the
iron. From this R. Eliezer b. Jacob said : One who drops
out of his hand a stone, and another one puts out his head and
is injured by it, he is free. Said R. Jose b. Hanina: He is not
to be banished, but he must pay the four things.
He who applies the explanation of R. Jose to the last case
self-evidently holds that it also applies to the former case, and
he who applies the explanation to the former case, in the last
case may say that he is wholly free.
The Rabbis taught : Employees who came to demand their
wages from their employer, and were gored by his ox or bitten
by his dog, to death, he is free. Anonymous teachers, how-
ever, hold that employees have the right to demand their wages
from their employer (and therefore he is guilty). How is the
case ? If the employer usually comes to town, what reason have
the anonymous teachers for their assertion ? If, on the other
hand, he can be found only in the house, what is the reason of
the first Tana ? It is in a case where he is not certain, and the
employe when knocking on the door or gate is told " In " ; one
holds that " in " means " come in " (and therefore they had the
right to enter), and the other one holds that " in " means " stay
where you are (and I will come out to you)." There is a sup-
port to the latter construction of " in " from the following Bo-
raitha: " An employee that entered to demand his wages from
his employer, and he was gored by his ox or was bitten by his
dog, he is not guilty although he entered with permission."
Why so ? We must say that it means that when knocking on
the door or gate he was told " in," and he meant that he had
permission to enter, but in reality " in " meant only " stay where
you are (and I will come out to you)."
MISHNA IX. : Two non-vicious oxen that wounded each
* The Hebrew term [Deutr. xix. 5] bein^j NifDI, literally " it found."
74 THE BABYLONIAN TALMUD.
other: the one who is hurt the most is to be paid one-half of the
amount of the value of difference of the injuries. If both are
vicious the full amount of difference of the injuries is to be
paid. If one is non-vicious and the other vicious : if the vicious
one injured the non-vicious more than he himself was injured he
pays the full amount of the difference, if the reverse is the case
only one-half is paid. So also if two men wound each other, the
one who hurt the most must pay the full amount of the difference.
A man who hurt a vicious ox and was also hurt by the ox,
or when the reverse was the case, the full amount of difference
is to be paid. If the case was with a non-vicious ox the man
pays the full amount and the ox pays the half. R. Aqiba,
however, says : Even if the ox was non-vicious, the full amount
is to be paid.
GEMARA: The rabbis taught: It is written [Ex. xxi.
31]: "According to this judgment shall be done unto him.**
That means that as the judgment when two oxen gore each
other, so also shall it be when an ox gores a man. As in the
former case a non-vicious ox pays one-half and a vicious one the
full amount ; the same is the case if it gored a human being.
R. Aqiba, however, says: " According to this judgment " means
that the judgment just mentioned applies to man, but not to
the preceding case. Shall we assume that it must be paid from
the best estates ? Therefore it is written [ibid., ibid.] : " Shall be
done unto him,'' which means that he pays only from the body
of the ox, but not from the best estates.
MISHNA X. : An ox of the value of one hundred selas that
gored another one of the value of two hundred, and the carcass
was worthless, the plaintiff takes the ox {i.e., one-half of the
damage).
GEMARA: Our Mishna is in accordance with R. Aqiba of
the following Boraitha (which treats of the same case, and
teaches): " The ox shall be appraised in court, and if he is
worth one-half of the killed one the plaintiff may take him."
Such is the dictum of R. Ishmael; R. Aqiba, however, holds
that the plaintiff takes the ox without any appraisement. On
what point do they differ ? R. Ishmael holds that the plaintiff
becomes a creditor, and his demand is money, and it must be
assessed by the court, and R. Aqiba holds that the plaintiff
becomes a partner to the defendant, and they differ as to the
explanation of the following passage [Ex. xxi. 35]: " Then they
shall sell the live ox and divide his money, and the dead ox also
TRACT BABA KAMA (THE FIRST GATE). 75
they shall divide." R. Ishmael explains that it means that this
shall be done by the court, and R. Aqiba maintains that the
passage makes the parties partners, if both oxen were of equal
value ; if, however, the goring ox was worth half he belongs at
once to the plaintiff. What is still the difference ? When the
plaintiff has consecrated him (according to R. Aqiba he is sacred,
and according to R. Ishmael he is not until awarded to the
plaintiff by the court). Rabha questioned R. Na'hman: If the
defendant sold the ox, how is it, according to R. Ishmael, who
holds him to be a creditor, is the sale valid? Or perhaps because
the ox becomes subject to the appraisement of the court it is not
valid ? He answered: The sale is not valid. But have we not
learned in a Boraitha that it is valid ? He may recover him.
If it is so, what is the validity of the sale ? In case the vendee
used him in the meantime in ploughing he need not pay for it.
Then infer from this that if a borrower sells his personal property
the Beth Din can recover it for the benefit of the lender. Nay,
from this case in which the Scripture made the ox hypothecary
nothing can be inferred.
R. Ta'hlipha, of Palestine, taught in the presence of R.
Abuhu: If he sold him it is invalid, but if he consecrated him it
is valid. Who sold him ? The defendant, and all agree that
the sale is not valid, because even according to R. Ishmael he is
still subject to the appraisement in court, and if he consecrated
him all agree that he is sacred, because even according to R.
Aqiba, who holds that he belongs to the plaintiff without any
appraisement, a sacred thing is different by reason of the state-
ment of R. Abuhu, who said that it was so decreed for fear that
it might be said that consecrated things become ordinary with-
out being redeemed.
The rabbis taught: '* A non-vicious ox that has done dam-
age, if he was sold, consecrated, slaughtered, or presented to
somebody, the act is valid if it was done before the rendition of
judgment ; if, however, either of these things were done after
rendition of judgment, it is null and void. If the creditors
levied upon the ox, whether the damage was done before or
after the recognition of the court of the debt the levy is void,
for the damages in case of a non-vicious ox are paid from his
body only. In case of a vicious ox all the above acts of his
owner are valid without regard whether it was done before or
after rendition of judgment, and even the levy of creditors is
valid regardless of whether the damage was done before or after
76 THE BABYLONIAN TALMUD.
recognition, for the reason that damages in case of a vicious ox
are paid from the best estates only.
The Master said: " If sold it is valid, as far as the non-pay-
ment for the ploughing he has done; if it was consecrated it is
valid for the reason stated by R. Abuhu ; and if slaughtered or
presented to somebody the act is valid." It would be correct
as to presenting, because it means as far as the value of plough-
ing is concerned, but in case he was slaughtered, why should
not the damage be collected from the value of his meat ? Have
we not learned in a Boraitha: "It is written: 'The live.'''
Whence do we know that if even it was slaughtered ? There-
fore it is written: " And they shall sell the ox," which means
in whatever state he is ? Said R. Shizbi: This (that the act is
valid) was necessary only as to the reduction in value on account
of being slaughtered {i.e.y the owner of the ox need not pay the
amount of such reduction).
The rabbis taught: "An ox of the value of two hundred
zuz that gored another ox of the same value, and injured him
to the extent of fifty, and the injured ox then improved and
became of the value of four hundred, although it is possible
that if not for the injury he would have improved still more,
and would have become of the value of eight hundred, still he
pays him only as at the time of the injury (one-half of fifty
zuz) ; if, however, the injured ox became lean and decreased in
value, he pays him according to the value at the time of the
trial. If the ox who caused the injury improved, he pays him
as at the time of the injury; if he decreased in value, as at the
time of the trial. On account of what was that leanness of the
plaintiff's ox ? If it was on account of work done with him by
the plaintiff, let the defendant say. Why should I suffer for the
decrease in value caused by you ? Said R. Ashi : The case is
that the leanness was caused by the blow, in which case the
plaintiff can say the horn of your ox is still impressed (in my ox)
and this caused leanness.
MISHNA XL : An ox of the value of two hundred that
gored another ox of equal value and the carcass was of no value
whatever. R. Meir holds that of such a case it is written
[Ex. xxi. 35]: " Then shall they sell the live ox and divide his
money." Said R. Jehudah to him: So the Halakha prevails in
reference to the passage cited by you, but how is the last part
of this passage [ibid., ibid.] : '* And the dead one shall they also
divide " ? This can apply to a case where the carcass of the ox
TRACT BABA KAMA (THE FIRST GATE). 77
(which ox was of the same value as the goring ox) is still worth
fifty Zuz, in which case each takes one-half of the live and one-
half of the dead ox.
GEMARA: The rabbis taught: "An ox of the value of
two hundred zuz that gored an ox of equal value and the car-
cass was worth fifty, each one takes one-half of the live and one-
half of the dead ox, and this is the case of the ox intended by
the Scripture." Such is the dictum of R. Jehudah. R. Meir,
however, holds this is not the ox intended by the Scripture, but
it is where it is as stated in the beginning of the Mishna, and
the provision of the passage that " also the dead ox shall they
divide" is carried out by appraising how much the carcass is
worth less than when the ox was alive, and one-half of that dif-
ference (seventy-five zuz) is paid to the plaintiff from the live
ox together with the carcass. If it is so, then, according to
both, if the carcass is worth fifty each of them gets one hundred
and twenty-five, as even according to R. Jehudah, who divides
both oxen between them, the share is only one hundred and
twenty-five, what is the difference between them ? Said R.
Johanan : The difference is as to the increase in value of the
carcass (since the time of the injury). R. Meir holds that it
belongs wholly to the plaintiff, and R. Jehudah holds that they
are considered partners, and each takes one-half. And this was
because there presented itself a difficulty to R. Jehudah: If you
say that the Scripture sympathized with the defendant and
meant that he should share in the improvement (of the carcass),
would you say in case of an ox worth five selas (twenty zuz) that
gored an ox worth one hundred and the carcass is worth fifty
zuz, that they also must divide equally the live and the dead
ox (and so the defendant will still profit in that, because the
one-half carcass is worth twenty-five zuz, and half of the live is
worth ten zuz, which makes thirty-five zuz, while the value of the
defendant's ox was only twenty zuz), and where do we find such
a case wherein the defendant should still profit ? And further-
more, is it not written plainly [ibid. 36] : " He shall surely pay,"
which signifies that the defendant pays, but should not profit.
[For what purpose is this additional passage adduced ? Lest one
say that he pays only where the plaintiff does actually suffer
damages, but where he does not, as, for instance, an ox worth
five selas that gored an ox of equal value, and the carcass was
worth six selas (by increase in price, in which case the plaintiff
profits), in such a case the defendant may profit, therefore this
78 THE BABYLONIAN TALMUD.
passage is adduced to show that the defendant should always
pay but never profit.] Said R. A'ha barTa'hlipha to Rabh: If
it is so, then according to R. Jehudah, who insists upon the
division of both, we find instances according to him that a non-
vicious ox pays more than one-half, and the Scripture provides
expressly [ibid. 35] : " Then shall they sell the live ox and divide
his money " {e.g.j when an ox worth fifty gored one worth forty,
and the carcass was worth twenty, then the damage amounts to
twenty, and if the plaintiff take one-half of the live ox which is
twenty-five, and one-half of the carcass which is ten, he would
receive altogether thirty-five, which is more than one-half of
the damage). Nay, R. Jehudah also holds of the rule that the
difference should be divided and deducted from the live one.
Whence does he deduce it? From [ibid., ibid.]: "And the
dead ox also they shall divide." But does not R. Jehudah de-
duce from this passage that each takes one-half of the dead and
one-half of the live one ? The passage could read: " And the
dead ox they shall divide.*' Why "and the dead ox also'" 1
To infer both.
MISHNA AY/. : There are cases when one is liable for the
acts of his ox and is free if they are his own acts, and vice versa.
How so ? If one's ox cause disgrace the owner is free,* but if
he himself did so he is liable. If his ox blinded the eye of his
slave or knocked out his teeth the owner is not liable {i.e.y the
slave is not to be manumitted), but if he himself did it he is.
If his ox wounded one of his parents he is liable, but if he him-
self had done so he is free ; and the same is the case when his
ox set fire to a barn on Sabbath he is liable, while if he himself
did so he is free, for in both last cases he is guilty of a capital
crime.
GEMARA: R. Abbuhu taught in the presence of R. Jo-
hanan : All those whose acts are of a destructive nature are not
liable (as regards the observation of the Sabbath), except those
who wound and set fire. Said R. Johanan to him: Go and
teach this outside of the college {i.e.^ such a statement is not to
be respected by the college), as those two mentioned are no ex-
ceptions (and are also of destructive nature); they can only con-
stitute exceptions in case of the wounding (of an animal when he
needed the blood) for his dog,f and in case of fire when he needed
* As explained above, p. 53, from the verse Levit, xxiv. ig,
f According to the commentary of R. Hananel.
TRACT BABA KAMA (THE FIRST GATE). 79
the ashes {i.e., when the act was done with an Intention to de-
rive benefit from the things acted upon).
There is an objection from our Mishna: ** An ox that set fire
to a barn," etc. And as the Mishna equals the owner to his ox,
is it not to assume that as the ox had no need of the fire so also
had the owner none, and still it is stated that he is free (civilly)
because he is guilty of a capital crime (hence we see that setting
fire on Sabbath is an exception) ? Nay, the equality Is In the
reverse ; that Is, as the owner did it with some purpose, so also
did the ox. How is this possible of an ox ? Said R. Avia : It
may be explained that It was an Intelligent ox that had an itch
on his back, and he started the fire in order to roll in the ashes.
But whence do we know that this was his intention ? From the
fact that he really did roll In the ashes. Are there such Intelli-
gent oxen ? Yea, there are, as there was an ox that belonged
to R. Papa, who when he once suffered from toothache removed
the cover from the beer barrel and drank from the beer to be
cured.
Said the rabbis to R. Papa: How can you say that the
equality is that the ox Imitated the owner? Does not the Mishna
state that If his ox cause disgrace he Is free, but not if he him-
self: now can an ox have such Intelligence as to intend to dis-
grace ? Yea, for instance, when he intended to do damage (but
caused only disgrace), in which case the Master said elsewhere,
if he intended to do damage but caused only disgrace, he is
liable.
MISHNA XIII. : An ox that ran after another ox, and the
latter was Injured, the plaintiff claims that the ox Injured him
while the defendant claims that it was not so, but that the
Injury was caused by rubbing against a stone: the rule is that
the burden of proof is upon the plaintiff. If two oxen having
different owners were running after a third, each of the defend-
ants claiming that the other one's ox caused the injury, both
of them are free ; If the two oxen belonged to one person both
are liable (as explained further on); If one ox was a big one
and the other a small one, the plaintiff claims that the big one
caused the Injury while the defendant claims that the small one
caused it (the difference being that the big one is of sufficient
value to pay the half damage while the small one is not); or if
one was non-vicious and the other vicious, the plaintiff claiming
that the vicious one did the Injury, and the defendant claiming
that the non-vicious did it, the burden of proof is upon the
8o THE BABYLONIAN TALMUD.
plaintiff. If the defendant's oxen were two, one a big one and
the other a small one, and so also were the plaintiff's oxen, the
plaintiff claims that the big one injured his big ox and the small
one injured the small ox, and the defendant claims that the
reverse was the case (so as to reduce his payments) ; or when
one was a non-vicious and the other one a vicious one, the
plaintiff claims that the vicious one injured the big one and the
non-vicious the small one, while the defendant claims that it
was not so, but that the non-vicious injured the big one and the
vicious the small one, the burden of proof is upon the plaintiff.
GEMARA: Said R. Hyya bar Abba: This statement (in the
Mishna, that the plaintiff has the burden of proof) shows that
Summachus' companions differ with him, for Summachus holds
{post, pageio6)that money, the ownership of which is doubtful,
must be divided among its claimants. Said R. Abba bar Mamel
to R. Hyya bar Abba: Does then Summachus hold so even if
both of them claim to be positive in their statements ? He an-
swered: Yea. And whence do we know that our Mishna also
speaks that both claim to be positive in their statements ?
Because it teaches plainly: One party says: Your ox; and the
other party says (positively): Not so. R. Papa opposed: Accord-
ing to your explanation that both claim to be positive in their
statements, the last part must naturally also treat of such a
case; then how is it to be understood: If one was a big one and
one was a small one, etc., the plaintiff has the burden of proof;
how would be the law if he does not prove : he takes according
to the statement of the defendant ? Would this not be in con-
tradiction to Rabba bar Nathan, who says that where one party
claims to have sold another party wheat, and the other party
admits to have bought of him barley, that the latter is free (and
according to the above rule the seller would be entitled to re-
cover for barley) ? We must, therefore, say that the case is
when one claims that he is positive, while the other one is not
positive. Let us see who claims that he is positive. Shall we
assume that the plaintiff claims that he is positive and the
defendant does not, then there will still be a contradiction to
Rabba bar Nathan. We must, therefore, say that the plaintiff
does not claim that he is positive while the defendant does so
(and therefore he claims his damages from both, and if he does
not prove his assertion he recovers only according to the defend-
ant's statement). Now as the latter part speaks of a case where
the plaintiff was uncertain and the defendant was certain, the
TRACT BABA KAMA (THE FIRST GATE). 8r
same must be the case in the first part of the Mishna, and even
Summachus holds to his theory, because if not it was not neces-
sary for the Mishna to teach this case. Nay, in the latter part
of the Mishna the plaintiff is not positive and the defendant is
positive, and in the first part the reverse is the case.
But after this explanation the first part and last part treat of
different cases; then could you not explain that the first part
speaks where both were positive (and only then Summachus says
that the money should be divided), and the last part treats
where one is positive and the other is not (in which case Sum-
machus does not oppose). It can be said: Certainty and uncer-
tainty in the first part, and uncertainty and certainty in the
other part is still one and the same case, but if both assert cer-
tainty in one case and certainty and uncertainty in the other
case, there are two different things, and if the Mishna should
mean so it would state so plainly.
'"Both are liable.'' Said Rabha, of Pharsika, to R. Ashi :
Infer from this that if non-vicious oxen cause damage the plain-
tiff may collect his damages from any one of them. Nay, the
case in the Mishna is that both oxen were vicious. Said R. A'ha
the elder to R. Ashi: If the case were that they were vicious,
why is it stated that both are liable ? It ought to be * V/^'* (the man)
is liable, meaning the owner (as the damage is paid from the best
estates). We must, therefore, say that the case is that they
were non-vicious, and it is according to R. Aqiba, who holds
that they (the parties) are considered partners, and the reason
here is that both oxen are on hand, in which case he cannot
shift the responsibility upon the missing ox, but where one of
them is missing the defendant may say to the plaintiff: Prove
that this ox has done the injury, and I will pay you.
6
CHAPTER IV.
RULES IN REGARD TO OXEN REPEATEDLY GORING OTHER OXEN
AND HUMAN BEINGS. OXEN OF ORPHANS AND GUARDIANS AND
WHAT IS CONSIDERED '^GUARDED."
MISHNA /. : An ox that gores four or five oxen one after
another, the last of them must be paid from the body of the
goring ox (if he was yet considered non-vicious., e.g., when the
goring was not in succession*), and from the balance of the half
body the last but one must be paid, and if there was still a bal-
ance left the last but two must be paid, so that the later the
more privileged. Such is the dictum of R. Meir. R. Simeon,
however, says that if an ox of the value of two hundred zuz gores
an ox of the same value, and the carcass is worth nothing, each
one takes one hundred ; if he again gores another of the value
of two hundred, the last one takes one hundred zuz, and the
former takes fifty, and fifty zuz remain for the owner of the
goring ox; if he again gores a third one of the same value, the
last one takes one hundred, the last but one takes fifty zuz, and
the first as well as the owner takes each a golden dinar (twenty-
five silver dinars).
GEMARA: According to whom is our Mishna ? It is cer-
tainly not according to R. Ishmael, who holds that the plaintiffs
are considered creditors, for if it be so, then not the last, but
the first would be more privileged, for he was prior to the last
one in point of time. Neither can it be in accordance with R.
Aqiba, who holds that in case of a non-vicious ox the plaintiff
and the defendant are considered copartners, for then if there is
a balance left from the body of the ox after the goring of the
last one, the same would have to be divided equally among all
the plaintiffs previous to the last one, and the decree of the
Mishna is that the last but one must be paid, etc. Said Rabha:
* Rashi explains this as follows : After the first goring he saw another ox and
did not gore and after the second goring he saw two or three other oxen and did not
gore them, and so after the third and fourth gorings in which case he is not considered
vicious even in alternate order, as explained further on in the text.
_ 82
TRACT BABA KAMA (THE FIRST GATE). 83
The Mishna can be explained In accordance with R. Ishmael,
and the difficulty that it is stated that the later, the more priv-
ileged, which ought to be the first (according to R. Ishmael), is
to be explained thus: that the plaintiff levied upon the ox, and
in such a case the plaintiff becomes responsible for the damage
done by the ox while under his control, as he is then consid-
ered a bailee for hire as regards damages (and so was the case
with all others). But if such was the case, then why is it stated
that if there is a balance left it goes to the last but one? It ought
to go to the owner of the ox (for all the gorings subsequent
to the first one were made while the ox was not under his con-
trol). Said Rabhina: The statement in question means that if
after the last one was paid from the body of the ox, there still
remained a balance, the same must be paid over to the preceding
one.* And so when Rabhin came from Palestine he said in the
name of R. Johanan that the Mishna is to be explained in the
same sense that Rabha did ; that is, that the Mishna treats only
about the negligence of the plaintiffs who took the ox under
their control and neglected to sufficiently guard him as was their
duty to do.
Now, when the Mishna is explained to be in accordance with
R. Ishmael, how is it about the last part: " R. Simeon said,
etc., . . . the first as well as the owner take each a golden
dinar" ? This is certainly in accordance with R. Aqiba's opin-
ion that the goring ox becomes the common property of a
copartnership. Then the Mishna would be in accordance with
* This is very complicated, and the commentaries differ as to the explanation
and illustration thereof. Rashi maintains that if the value of the fifth one was only-
fifty zuz, the carcass being of no value, he collects from the body of the goring ox
his full half of twenty-five zuz, and turns over the balance to the fourth one, whose
ox was of the value of one hundred zuz, who collects nevertheless only twenty-five
zuz, for the reason that the twenty-five zuz collected by the fifth one are deducted
from his half damage, because the ox was then under his control, and the balance is
turned over to the third one, applying the same rule ; one full half value of the ox,
however, belongs to the owner, as the ox was not under his control since the first
goring.^ Hananel's illustration of this rule, however, is in reverse order : The first
one whose ox was of the same value of the goring ox, who had to collect one hun-
dred zuz out of the body of the goring ox, loses fifty if the goring ox gores another
of the value of one hundred while under his control, and so the second pays to the
third the one half of the damage done to him, so that only the last one takes his full
half damage, as the ox was not under his control. Tosphath remarks that in such
cases it can happen that the third and fourth should collect nothing, and even the
fifth one may not be able to collect his full half. See the objection of Samuel Eidlis
(Marsha) to these remarks of Tosphath and the answer of Sabbati Kohen in his com-
mentary on the Schulchan Aruch, §401, and their illustrations.
84 THE BABYLONIAN TALMUD.
two different opinions, viz., the first part according to R. Ish-
mael and the last part in accordance with R. Aqiba. The
Schoolmen said: Yea, so it is, for Samuel said to R. Jehudah
(concerning this Mishna): " Genius, leave alone the explanation
of the Mishna and agree with me that the first part is according
to R. Ishmael and the last part according to R. Aqiba." *
MISHNA //. : An ox that is vicious towards his own species,
but not towards other species, or towards human beings but not
towards animals, or towards young cattle, but not towards full-
grown cattle, the whole damage is to be paid to those towards
which he is vicious and half to those towards which he is not
vicious. The disciples asked R. Jehudah what the law was
when an ox was vicious on Sabbath days, but was non-vicious
on week days. He answered : The same is the case also here.
He pays the whole for damage done on the Sabbath days, and
half for that done on week days. When is such an ox restored
to non-viciousness ? If he refrained from doing damage for
three Sabbath days in succession.
GEMARA: It was taught: R. Zbid said: The Mishna
teaches " and not vicious^'' which means that as to other species
it was certain that he was not vicious, but if it is not certain
he is to be considered vicious towards all. R. Papa, however,
said: The Mishna teaches "he is not vicious," which means
that an ox that is vicious towards his species is not considered
vicious towards others. The reason for their difference of opin-
ion is the following: The former lays more stress on the last
part of the Mishna, which teaches that when he is vicious
towards young cattle he is not considered vicious towards full-
grown cattle, and this could be correct only in accordance with
his interpretation that it is certain that he was not vicious, but
according to the explanation that he is considered non-vicious
this statement is entirely superfluous, as it was already stated
that he is not considered vicious even to young cattle if it is
not certain, and it is self-evident that so much the less towards
full-grown cattle. The latter attaches more importance to the
first part of the Mishna, which teaches that if vicious towards
human beings he is not considered so towards cattle, and this
could be correct only if it is explained that if it is uncertain that
he is vicious to cattle he is also considered non-vicious: then the
* Here is an omission which will be supplied in the eighth chapter of this tract,
as there is the proper place for it.
TRACT BABA KAMA (THE FIRST GATE). 85
statement of the Mishna is necessary to teach us that, although
he is vicious towards human beings, he is still not considered so
towards cattle, but if you should explain that he is considered
vicious, even when it is uncertain, then this statement is entirely
superfluous, as it was already stated that he is considered vicious
even from cattle to cattle, and it is self-evident that so much
the more so when he is vicious toward human beings.
Said R. Ashi: The last part of the Mishna could support
R. Zbid only. Come and hear: " The disciples questioned
R. Jehudah what the law was, etc., . . . and he answered,
etc. . . ." Now, if the Mishna is to be explained accord-
ing to R. Zbid, that when not certain he is considered vicious,
both the question and the answer are correct {i.e., they ques-
tioned him, when he was certain for Sabbath days and not cer-
tain for week days, how was the law); but if you will explain
the Mishna otherwise {i.e.j as R. Papa) what was their question ?
The Mishna states plainly that he is not vicious. Did they in-
tend to teach R. Jehudah and not to question him ? And, sec-
ondly, was it then an answer of the latter? He only repeated
what they said ? Said R. Janai: R. Zbid's opinion is supported
even from the first part of the Mishna, which states: "The
whole is paid to those toward whom he is vicious, and half is
paid to those toward whom he is not." This statement can be
correct only when he is certain to be non-vicious ; then it is cor-
rect that the Mishna explains its former statement : To those
toward whom he is vicious he must pay so much, and to those,
etc., but if the Mishna means to state that one vicious toward
human beings is not vicious toward cattle, to what purpose is
the latter statement ? Is it, then, not known how much a vicious
ox and how much a non-vicious pays ? If, however, an ox
gored another ox, an ass, and a camel, he must be considered
vicious toward all species of cattle even according to the theory
of R. Papa (as these three species make it certain that he is
vicious).
The Rabbis taught: There is a case where an ox may become
vicious " in alternate order," namely, if he meets an ox and gores
him, and subsequently he meets another ox and does not, the
third however he meets he again gores, when meeting the fourth
one, though, he does not, but when meeting the fifth one he does ;
and again the sixth he does not. There is another case where
an ox may become vicious "in alternate order" towards all
species, namely, if he meets an ox and gores him, and subse-
86 THE BABYLONIAN TALMUD.
quently an ass and does not, a horse and does, a camel and does
not, a mule and does, a wild-ass and does not gore him.
The Schoolmen propounded a question : How is it if he gores
three oxen in succession and subsequently one ass and one
camel : shall we count the third ox together with the former two,
and should he be considered vicious toward oxen only but not
toward other species of cattle, or shall we count the last ox with
the ass and camel, so that he gored three times in succession
three different species of cattle, and he is then considered
vicious toward all species of cattle ? This question remains
unanswered.*
Rabha said: "If an ox gored three times, each time upon
hearing the blowing of a horn, he is considered vicious when
hearing the sound of a horn." Is this not self-evident ? Lest
one assume that the first time is not to be counted because he
became frightened, he comes to teach us that it is counted.
MISHNA ///. : An ox belonging to an Israelite that gored
an ox belonging to the sanctuary, or of the sanctuary that gored
one of a commoner, there is no liability, for it is written [Ex.
xxi. 31]: " The ox of another " (man), but not of sanctuary. f
GEMARA: This Mishna is not in accordance with R. Simeon
b. Menassia of the following Boraitha: " An ox of a commoner
that gored an ox of the sanctuary, or vice versa, is free, for it
is written: * The ox of another,'' but not of the sanctuary. R.
Simeon b. Menassia, however, says that an ox of the sanctuary
that gored an ox of a commoner is free, but an ox of a com-
moner that gored an ox of the sanctuary, whether vicious or
not, the whole damage must be paid." Let us see what the
reason is of R. Simeon's opinion. If R. Simeon interpreted the
word " another man " literally, why, then, should the commoner's
ox be liable when he gores an ox of the sanctuary (the sanctuary
cannot be called another man) ? And if he interpreted the word
not literally, why should an ox of the sanctuary be free when he
gored a commoner's ox ? And if one might say that although
he interpreted the word literally, he nevertheless makes the
* Here foHow several similar questions, all remaining unanswered, and they are
of no importance.
f For the first time in our translation we omit here a statement of the Mishna
regarding the goring of an ox belonging to an idolater, for it seems to us that it was
inserted here not by the editors of the Mishna ; the evidence for this we have set forth
in a long article in Hebrew in the monthly " Ner Hamarabi." We will probably ex-
plain this to our English readers in an appendix to the " third gate " of this section.
TRACT BABA KAMA (THE FIRST GATE). 87
commoner pay on the ground of the following a fortiori conclu-
sion : When one commoner's ox gores a similar ox he must pay ;
so much the more if a commoner's ox gores one belonging to
the sanctuary, and then his statement that even if he was non-
vicious the whole damage must be paid would not be correct, as
there is a rule that it is sufficient that an inference should be
equal to the law from which it is derived (and under no circum-
stances more rigorous) ; why then must he pay the whole damage
if it is based only on this a fortiori conclusion ? Said Resh
Lakish: In reality in all cases the whole damage must be paid;
the verse, however, making an exception of goring and stating
that half only is to be paid, added at the same time the word
inj^*1 (which means, literally, " his comrade"), with the inten-
tion to exclude all those cases where it cannot be considered of
his comrade, e.g.^ of the sanctuary; and the correctness of this
statement may be proved from the fact that when the verse
speaks of a vicious ox the above word " Re-ehu " is not men-
tioned.
When the daughter of R. Samuel bar Jehudah died, one of
the Rabbis said to Ula : Let us go and console him. He said
to them : What have I to do with the consolation of a Babylon-
ian, for it may turn into a blasphemy, as they are in the habit
of saying in such cases, " What can be done ? " (against the will
of God), which means that if something could be done against
His will they would, and this is certainly a blasphemy. He
then went alone, and his consolation was as follows : It is writ-
ten [Deut. ii. 9] : " And the Lord said unto me, Do not attack
the Moabites, nor contend with them in battle." Could it,
then, ever enter Moses' mind to engage in war without the con-
sent of the Lord ? But Moses drew an a fortiori conclusion for
himself, thus: If of the Midianites who only came to help the
Moabites the Scripture reads [Numb. xxv. 17]: "Attack the
Midianites, and smite them," the Moabites themselves so much
the more? The Holy One, blessed be He, then said: "Thy
conclusion was so because thou couldst not imagine what I bear
in my mind. Two good doves I have to bring forth from them ;
namely, Ruth the Moabite and Naomi the Amonite." Now is
there not an a fortiori conclusion to be drawn ? If for two good
doves the Holy One, blessed be He, has saved two great nations
and has not destroyed them, so much the more would He have
saved the life of the master's daughter if she would be righteous
and something good would have to come forth from her.
SS THE BABYLONIAN TALMUD.
MISHNA IV.: An ox of a sound person that gored an ox
belonging to a deaf mute, idiot, or minor, there is a liability. If
the reverse was the case, there is none. An ox of the three
last-named persons that gores, the court should appoint a guar-
dian and the witnesses should testify in the presence of the
guardian. If in the meantime the deaf mute is cured, the idiot
becomes of sound mind, or the minor becomes of age, the ox is
restored to his non-viciousness. Such is the dictum of R. Meir.
R. Jose, however, says that he remains in the same position.
An ox of the stadium {i.e., the place where oxen are trained for
fighting) is not liable to be killed when killing even a human
being, for it is written: " If an ox gore,'* which means of his
own inclination, but not when he is trained to do so.
GEMARA: Does, then, the Mishna not contradict itself?
First it states that if an ox of the three named persons that
gores an ox of a sound person, there is no liability, from which
it may be inferred that no guardian is to be appointed when the
ox is non-vicious to enable the plaintiffs to collect from his body,
and immediately after it states that an ox of those three persons
that gores, the court should appoint a guardian and witnesses
should testify before him, from which it may be inferred that a
guardian is appointed for the purpose of enabling to collect from
his body ? Says Rabha: This is to be interpreted thus: If they
were known to be goring oxen the court appoints a guardian,
and the witnesses are examined in the presence of the guardian
and the ox is declared vicious, so that if he subsequently gores
again the damage is collected from the best estates. From
whose best estates? R. Johanan said: From those of the
orphans.* R. Jose b. Hanina said: From those of the guardian.
Did R. Johanan, indeed, say so ? Did not R. Jehudah say
in the name of R. Assi that the estate of orphans must not be
touched (until the orphans reach majority, even when there is
a written obligation of their deceased father to be paid), unless
interest would grow on the obligation [e.g., when the deceased
borrowed money from a Gentile). R. Johanan, however, says
also when the widow's marriage contract is to be paid, because
she must be paid out of the estate a sum of money for her sub-
sistence so long as her marriage contract remains uncollected.
Hence we see that only for the purpose of supporting the widow,
or where there is interest growing, R. Johanan permits to collect
* I,e,. those three named in the Mishna,
TRACT BABA KAMA (THE FIRST GATE). 89
from orphans' estates, but not otherwise. Reverse the state-
ment in our case, that R. Johanan holds from the estate of the
guardian, and R. Jose b. Hanina said from those of the orphans.
Said Rabha: Because there is a contradiction between the state-
ments in the name of R. Johanan, you make R. Jose err. R.
Jose b. Hanina was a judge, and he always dived to the bottom
of the law. Therefore the statement in our case is not to be
reversed, but the reason why R. Johanan states in our case that
it shall be collected from the estates of the orphans, is because
there is no other way, as if it should be collected from the estates
of the guardian nobody would consent to become one. And
the reason for Jose b. Hanina's statement that it shall be col-
lected from the guardian's estates is because the guardian will
be able to collect what he has paid from the orphans' estates
when they reach majority.
There is a difference of opinion of the Tanaim as to whether
a guardian is appointed in order to collect from the body of the
ox in the following Boraitha: " An ox who has gored and his
owner subsequently became a deaf mute, an idiot, or went to the
sea countries, Jehudah b. Nekussa in the name of Summachus
holds that he must be considered non-vicious until the evidence
of viciousness was given in the presence of his owner; the sages,
however, hold that a guardian is appointed and the evidence is
given in his presence. Should it happen that the deaf mute
became cured, the idiot of sound mind, or the owner has re-
turned home, Jehudah b. Nekussa in the name of Summachus
says that the ox is restored to his non-viciousness, and remains
so until the evidence is given in presence of the owner, and R.
Jose says that he remains in the same position he was in."
Now let us see what Summachus does mean by his first state-
ment that he must be considered non-vicious, etc. Shall we
assume that the ox was still non-vicious; i.e., he had not gored
thrice? Then how shall his second statement be explained, that
he is restored to his non-viciousness, which means that he was
already vicious ? We must then say that the statement that he
is considered non-vicious means that it is considered that he
had not gored at all, hence no guardian is to be appointed to
collect from his body, and the sages say that there is one ap-
pointed. This is the explanation of the first part of the above
Boraitha. In the last part of the Boraitha they differ on another
point ; that is, if the change of control also changes his state
(£<?., whether the change from the control of the guardian to
90 THE BABYLONIAN TALMUD.
that of the owners changes also his viciousness to non-vicious-
ness)? Summachus holds that it does, and R. Jose holds that
it does not.
The rabbis taught: ** An ox of a deaf mute, idiot, or minor
that gored, according to R. Jacob, the half damages must be
paid." How was the case ? If it was a non-vicious ox it is
self-evident that only half is to be paid, as the same is the case
with an ox of a sound man, and if R. Jacob means that only
half is paid even if he was vicious, let us see under what circum-
stances it may be said so. If the necessary care was taken of
him then even the half should not be paid (for it is plainly writ-
ten [Ex. xxi. 29], " and he hath not kept him in," but here in
this case he had kept him in), and if the necessary care was not
taken of him why should not the whole damage be paid (as
according to R. Jacob there is no difference who owns the ox) ?
Said Rabha : This can be explained that it was a vicious ox, and
care was taken of him, but not so much as was necessary to pre-
vent him from coming into contact with other oxen ; and the
reason of R. Jacob's opinion is because he holds in accordance
with R. Jehudah, who says that the state of non-viciousness con-
tinues until he is declared vicious, and he also agrees with him
in that imperfect care is sufficient also for a vicious one, and he
agrees also with the Rabbis that a guardian is to be appointed
to collect from the body of the ox. Said Abayi to Rabha : But
do not R. Jacob and R. Jehudah differ from each other in their
opinions ? Have we not learned in the following Boraitha that
the ox in question R. Jehudah holds him liable, and R. Jacob
holds that he must pay half ? Said Rabbah b. Ula: R. Jacob
only explains the liability to which R. Jehudah holds him, but
does not differ with him. Rabhina, however, says that they do
differ, but the case was that there was a change of control ; that
is, that the deaf mute was cured, etc. R. Jehudah holds that he
remains in the same position he was in (and therefore he pays
the whole), and R. Jacob says that the change of control changes
also his status.
The rabbis taught: " Guardians pay from the best estates,
but do not pay the atonement money " (see Ex. xxi. 30). Who
is the Tana who holds that the money (which is to be paid
according to the verse mentioned) is in atonement, and orphans
need not have atonement, for they are not of age ? Said R.
Hisda: It is R. Ishmael, the son of R. Johanan b. Broka, of the
following Boraitha: " It is written [ibid., ibid., ibid.]: ' And he
TRACT BABA KAMA (THE FIRST GATE). 91
shall give the ransom of his life ' ; that is, the value of the de-
ceased. R. Ishmael, the son of R. Johanan b. Broka, however,
says it means the value of the defendant." Shall we not assume
that the point of difference is, that the Rabbis hold that the be-
ginning of that verse means the value of the deceased in money
as damages, but not in atonement, and R. Ishmael holds that it
is in atonement ? Said R. Papa : Nay, all agree that it is in
atonement, but their point of difference is: The Rabbis hold
that the appraisement must be of the person who was killed
(because his value is to be paid), and R. Ishmael holds that the
appraisement must be of the person of the defendant, because it
is written [ibid.]: "And he shall pay the ransom of //?> life."
And the Rabbis ? Yea, it is true that it states " his life," which
means that his life is atoned for, but the amount to be paid for
such atonement is the value of the deceased.
Rabha once declared before R. Na'hman that R. A'ha b.
Jacob was a great man, and R. Na'hman said to him : When he
comes to visit you bring him to me. When he had done so, said
R. Na'hman to R. A'ha: Question something of me; and he
put him the following question: "An ox belonging to two
copartners (who has killed a man), how shall the atonement
money be paid ? If each copartner should pay the full amount
then there would be two atonements, and the verse reads one;
and if we should say that each of them shall give only half, then
each pays only half^ while the verse states that * there shall be
laid on him a sum of money,' which means the whole sum, and
not the half." While R. Na'hman was sitting and deliberating
over the case, he put to him another question, as to whether the
property of the one who has to pay atonement is levied upon,
as such is the case with one who owes sin and trespass-offerings
(this will be explained in Tract Eruchin). And R. Na'hman
said to him: Leave alone this question. I am still sorrowful
that I could not answer the first question at once.
The rabbis taught: "One who borrows an ox with the
understanding that he was non-vicious, and it was found out
that he was vicious (and while being under the control of the
borrower he gored again), the owner pays one-half and the bor-
rower the other half. When, however, he became vicious while
being under the control of the borrower, and he has returned
him to the owner (and he gored once more), the owner must
pay half and the borrower is free." Let us see: The Master
said that in case he was borrowed with the understanding of
92 THE BABYLONIAN TALMUD.
being non-vioious, and was found vicious, each pays one-half.
Why shall the borrower pay anything ? Let him say to the
owner, I have borrowed an ox, but not a lion. Said Rabh:
The case was that it was known to the borrower that he was a
goring ox. But still, he can say that he was understood to be
non-vicious, and he turned out to be vicious, why shall I pay
half ? Because the owner may answer him : What difference
does it make to you in this case, if even he would be non-
vicious? As soon as he has gored while being under your control
you would have to pay half; the same is now, you pay only
half. But still there is a difference, for a non-vicious ox pays
from his body, while a vicious one from the best estates. The
owner may say: Even in this case there is no difference to you,
for you would have to pay for the other half of the ox to me in
money. Now let us see (the second part of the Boraitha):
" When he became vicious while under the control of the bor-
rower, etc., the borrower is free; " hence we see that the change
of control changes his status, and from the first part it is to be
inferred that it does not change the status, as the whole damage
is to be paid if he gored while under the control of the borrower.
Said R. Johanan: Break* this Boraitha: the Tana who taught
the first part did not teach the last one. Rabba, however, says:
The Boraitha cannot be broken, as in the first part it is declared
that change of control does not change the status, the same
must be the case with the second part. The reason, however, for
its decision is because the owner can say as regards the vicious-
ness of the ox, which occurred while under the control of the
borrower : The latter did not take care of him as he was not his,
and therefore I do not consider him vicious at all. R. Papa,
however, says : As in the last part of the Boraitha the control
does change the status, so also is it in the first part, but the
reason why there the whole amount is to be paid is because the
ox always bears the name of his owner, even while under the
control of the borrower, and therefore the change of control is
not to be considered.
" The ox of the stadium,'' etc. The Schoolmen propounded
a question : Is the ox in question fit for the altar or not ? Rabh
said he is, for he was goring by compulsion, and Samuel said
he is not, for at any rate a transgression was committed with
him. There is a Boraitha supporting Rabh, which states
* This form of expression is often used in the Talmud.
TRACT BABA KAMA (THE FIRST GATE). 93
plainly that the ox of a stadium is not guilty of death, and is
fit for the altar.
MISHNA V. : An ox that killed a man by goring him, if it
was a vicious one, the atonement money is to be paid, but not
when he was a non-vicious one. Both of them, however, must
be killed. The same is the case when he gored a minor male or
female. If he gored a male or a female slave he must pay thirty
selas, without regard whether their value was one thousand zuz
or only one dinar.
GEMARA : If a non-vicious ox killing a man must be killed,
how can there be found a vicious ox in regard to man ? Said
Rabba : The case was that he was running after three men, two
of whom escaped, and the court determined from the circum-
stances that if he would have caught those two he would have
killed them. R. Ashi, however, holds that such determination
is of no value, but the case was that he gored two, injuring but
not killing them at once, and then gored a third one to death,
when the first two also died, and therefore he is considered
vicious as to the third to pay the atonement money. R. Zbid,
however, says: By " vicious one" is meant simply that he has
killed three animals, and an ox that is considered vicious as to
animals is considered so also as to human beings.*
" Bo^/i of them y" etc. The rabbis taught: " From [Ex. xxi.
28] : ' Then shall the ox be surely stoned ' ; is it not self-evident
that he became a carcass, and a carcass must not be eaten, why
then does the verse add * and his flesh shall not be eaten ' ?"
The verse comes to teach that if he was slaughtered after judg-
ment was rendered the flesh must not be eaten. This is the
prohibition of eating it, but whence is it deduced that no benefit
must be derived from it ? Therefore it is written [ibid., ibid.]:
" But the owner of the ox shall be quit," which means he shall
be quit from any benefit. Such is the explanation of Simeon b.
Zoma. But whence do we know that the words, " his flesh shall
not be eaten," mean when he was slaughtered after judgment
was rendered ; perhaps it means after he was stoned, and the
words " shall not be eaten" are to be explained that he shall
not derive any benefit, but if he was slaughtered the flesh may
be eaten also ? The prohibition to eat it is inferred from
* In the Gemara this last sentence is put as a question, and there are many answers
to it which we deem of no importance to be translated. The law, however, prevails
as we have translated in our text.
94
THE BABYLONIAN TALMUD.
" surely stoned," and if the verse " his flesh shall not be eaten **
would mean to prohibit any benefit, it should have stated " shall
not be derived any benefit," or " he shall not be eaten." Why
the addition " his flesh" to indicate that if he was turned by
slaughtering into food, as other meat, it is also prohibited ?
The rabbis taught: It is written [ibid. 28]: " But the owner
of the ox shall be quit." Said R. Eliezer: He is quit from pay-
ing the half of atonement money. (One might say as a non-
vicious pays half damage in case of goring an animal, the same
is the case when he first gores a man.) Said R. Aqiba to him:
Is this not self-evident ? The half payment is collected from his
body, and here when the ox is stoned its owner may certainly
say: " Bring it into court and collect from it." Said R. Eliezer
to him: Do you consider me as common as not to know such
a case ? I speak of an ox that is not guilty of death ; for
instance, if he killed a man in the presence of one witness, or in
the presence of his owner only (in which case the ox cannot be
killed, but one might say that nevertheless the half atonement
money must be paid). [You say in the presence of his owner,
which means that the owner admits that it was so, then it would
be equal to one who confesses of being liable to pay a fine, and
the law is that he who confesses of being liable to fine is free ?
R. Eliezer holds that this money is in atonement and not a
fine.]
In another Boraitha we have learned: Said R. Eliezer:
** Aqiba, do you consider me so common as to speak of an ox
which is to be killed ? I speak about an ox who intended to kill
an animal but killed a human being, or who intended to kill a
non-viable child and killed a viable one." Which of these two
statements has R. Eliezer made to R. Aqiba first ? R. Kahana
in the name of Rabha said the one just mentioned was made
first. R. Tibiumi in the name of the same authority said that
the first statement was made first. The statement of the former
is to be compared to a fisher who catches fishes in the sea; if he
finds big fish he takes them, and if afterward he finds small ones
he takes them also (although the second statement is much
straighter evidence than the first one, he nevertheless made also
the other statement), and R. Tibiumi's statement is to be com-
pared to a fisher who keeps the small fish if he catch them first,
but catching afterward big fish he abandons the small ones and
keeps the big ones. (So was the case with R. Eliezer. He
tried to give him evidence from the first statement, but as this
TRACT BABA KAMA (THE FIRST GATE). 95
was easily objectionable he tried to find stronger evidence and
gave it to him.)
We have learned in another Boraitha: " But the owner of
the ox shall be quit." R. Jose the Galilean said that means
that he is quit from paying the value of children (if she was
pregnant). Said R. Aqiba to him (Is it necessary to have a
separate verse for this)? Is it not written [Ex. xxi. 22] : " If men
strike, and hurt a woman with child," etc., from which is to be
inferred that only in case of human beings there is a liability for
hurting children, but not in case of oxen? (Says the Gemara):
Is not R. Aqiba correct ? Said R. Ula, the son of R. Idi: An-
other verse is necessary for the following reason: From the verse
just mentioned one might say men, but not oxen that are equal
to men. That means, as men are considered always vicious, so
vicious oxen are free from liability for hurting children, but non-
vicious oxen should be liable. Therefore comes the other verse,
" The owner of the ox shall be quit," to teach that even in such
a case there is no liability. Said Rabha: Shall the native remain
on earth and the stranger be lifted up to the highest heaven ? *
{i.e.y how can it enter the mind that a vicious ox shall be free
and a non-vicious shall be liable?) Therefore said R. Ada b.
A'hba : (This verse alone would not be sufificient, for) in case of
men they are liable for the children only when they intended to
strike each other and struck the woman, but if they intended to
strike the woman herself there is no money liability because they
are guilty of a capital crime ; but in case of oxen one might say
that even when they intended to strike the woman herself their
owner shall be punished also to pay for the children, therefore
the expression " shall be quit " indicates that it is not so. And
so was it taught plainly in a Boraitha which R. Hagi brought
when he came from the south, as R. Ada b. A'hba explained it.
We learned in still another Boraitha: R. Aqiba said: " But
the owner of the ox shall be quit," means from the payment for
a slave (in case he was killed by the ox). But why should not
R. Aqiba say to himself, as he said above to R. Eliezer, page
143: " Bring it into court and collect from it," as the ox must
be stoned ? Said Rabha : The verse is nevertheless needed for
the following reason : One might say : Because there is more
rigorousness about a bondman than about a freeman, as for a
bondman thirty shekels are paid even if he was worth only one
* See explanation of this expression in Tract Erubin, p. 16, footnote.
96 THE BABYLONIAN TALMUD.
shekel, and in case of a freeman his actual value only is paid,
therefore it might be said that the payment for the bondman
must be from the best estates; hence the verse to make him
quit.
There is a Boraitha in support of Rabha, as follows: " The
owner of the ox shall be quit." Said R. Aqiba: Quit from
payment for the bondman : but why is a verse needed for that,
is it not common sense ? He is liable for a bondman and is
liable for a freeman : as in the liability for a freeman you made
a distinction between a non-vicious ox and a vicious one, is it
not common sense that there shall also be made the same dis-
tinction in the liability for a bondman. And in addition to that
we may draw the following a fortiori conclusion: A freeman for
whom there is a liability for his full value, and nevertheless
there is a distinction between a vicious and non-vicious ox, a
bondman for whom only thirty selas are paid (although he may
have been worth one hundred or more), so much the more that
there ought to be a distinction between a vicious and non-vicious
one (why, then, is the verse needed) ? There is more rigorous-
ness about a bondman than about a freeman, for in case of the
latter, if he was worth one sela he pays that much — that is, only
the actual value — but in case of a bondman thirty selas are paid
if even he was worth one sela, and therefore one might say that
whether vicious or non-vicious the full amount must be paid,
hence the verse that he shall be quit.
The rabbis taught: It is written [ibid., ibid. 29]: " And
he killeth a man or a woman." Said R. Aqiba: What does the
verse mean to teach us by the expression " a man or a woman,"
if it is only to teach that a woman is equal to a man ? This was
already stated in the preceding verse: " If an ox gore a man or
a woman." This verse is to make a woman equal to a man in
this respect, that as the damages for the killed man must be paid
to his heirs, so also in the case of a woman it is paid to her
heirs. But does R. Aqiba hold that her husband does not in-
herit from her ? Have we not learned in the following Boraitha:
" It is written [Numb, xxvii. n]: * And he shall inherit it*?
From this is to be inferred that the husband inherits from his
wife." So said R. Aqiba. Said Resh Lakish: R. Aqiba meant
the atonement money, which payment is made only after her
death, and thus it is only considered inchoate and the husband
does not inherit such a share in her inchoate as he does in her ex-
isting estates. But what is the reason that it is collected only after
TRACT BABA KAMA (THE FIRST GATE). 97
her death ? Perhaps it is to be collected as soon as the court
came to the conviction that she must die from the injuries.
Therefore it reads [ibid., ibid. 29, 30]: " And he killeth a man
or a woman, the ox shall be stoned, and his owner also should
of right be put to death.. But there shall be laid on him a sum
of money in atonement." From which is to be inferred that
the money is paid only when " his owner shall of right be put
to death," which cannot be when she is still alive. But did not
R. Aqiba say that even in cases of damage her husband does not
inherit from her ? Have we not learned in a Boraitha : " If one
struck a woman and caused her to abort he must pay for the
damage and pain to herself, and the value of the children to the
husband; if her husband is dead he pays to his heirs; if the
woman is dead he pays to /ler heirs. If she was a bondwoman
and became free, or she was a proselyte, the one who has to
make the payment need not pay, for he himself acquires title to
the payment, as these classes of persons have no legal heirs."
Hence we see that even for the damage and pain the payment
must be made to her heirs and not to the husband. Said Rabba :
The case was that she was a divorced woman ; and so also said
R. Na'hman : If the case was with a divorced woman, why
should she not take a share of the money paid for the children ?
Said R. Papa: The Scripture has awarded the money for the
children to their father, even if they were begotten illegally, as
it is written [Ex. xxi. 22] : " As the husband of the woman lay
upon him."
Resh Lakish said: An ox that killed a bondman uninten-
tionally is free from the payment of the thirty shekels, as it is
written [ibid., ibid. 32]: " Thirty shekels shall be given to his
master, and the ox shall be stoned," from which it is to infer
that only when the ox is to be stoned the money is to be paid,
but not otherwise. Said Rabba: The same is the case as re-
gards atonement money in case the ox killed a freeman uninten-
tionally, for it is written [ibid.]: ** The ox shall be stoned, and
his owner also should of right be put to death, but there shall
be laid on him a sum of money in atonement," from which is
to be inferred that only when the ox is stoned, etc., the atone-
ment money is to be paid, but not otherwise. Abayi objected:
We have learned: " (If one confess, saying) my ox has killed
a certain person, or his ox, he has to pay on his own testimony."
Does it not mean atonement money also ? Nay, it means the
money for damages. If it is so, why does the latter part state;
7
98 THE BABYLONIAN TALMUD.
** My ox has killed the slave of a certain man; he is not com-
pelled to pay on his own testimony " ? Now if this is not the
fine but damages, why should he not pay ? Said Rabba to him:
I could answer you that the first part treats of damages and the
latter of fine, but I do not hke to give you di far-fetched d^ns^NGr.
Both parts treat of damages, but in the first instance the atone-
ment money is paid upon his own testimony under the following
circumstances: That witnesses came and testified that his ox
killed a man, but were unable to testify whether he was vicious
or non-vicious, and the owner admits that he was vicious, in
such a case he has to pay the atonement money on his own testi-
mony, but where there are no witnesses he pays only the dam-
age, but not the atonement money. And in the case of a slave,
if witnesses come and testify that the ox killed the slave, but
they are unable to testify whether he was vicious or not, and the
owner admits that he was vicious, he has not to pay the fine
upon his own testimony, and where there are no witnesses he
need not pay even the damages. R. Samuel b. Itzhak objected :
We have learned: " The same liability one has for a freeman he
also has for a bondman, either as to atonement money or as to
the death penalty." Is there then any atonement money in
case of a bondman ? We must therefore say that it means
damages; hence we see that one pays damages even on his own
testimony. Some say that he himself answered this objection,
and others say that Rabba said to him : This Boraitha is to be
explained thus : In every case where one is liable to pay atone-
ment money — for instance, a freeman — when done with intention
and there is testimony of witnesses, he is liable under the same cir-
cumstances to pay a fine of thirty shekels in the case of a slave,
and in case he is liable for damages only — as, for instance, when
witnesses testify that he has done it without intention — in case of
a slave under the same circumstances he pays only damages, but
no fine; but if he himself admits, although in case of a freeman
he has to pay damages, in case of a slave under such circum-
stances he is free. Rabha questioned Rabba: If one's fire has
done damage without intention is there a liability or not ? Shall
we assume that it is only in case of an ox where, when intentionally
he pays atonement money, when unintentionally he pays dam-
age, but in the case of fire, where there is no atonement money
at all (as, if intentionally, he is guilty of a capital crime), if it was
unintentionally he shall not pay damages, or the atonement
money is not to be taken into consideration, and the damages
TRACT BABA KAMA (THE FIRST GATE). 99
must be paid at any rate; as we do not know of any reason why
fire should be distinguished from an ox when done uninten-
tionally, as both are his property ? This remains unanswered.
When R. Dimi came from Palestine he said in the name of R.
Johanan thus: It could be written: " Shall be laid on him a
sum of money in atonement." Why is the word " if " * added ?
To teach that the atonement money shall be paid when done
unintentionally as well as if done intentionally. Said Abayi to
him : According to your theory, why should we not say the
same of a bondman, where it is also written [ibid. 31] ** if,"
even when done unintentionally; and if you should say that so
it really is, why then said Resh Lakish that if an ox killed a
slave unintentionally he is free from the thirty shekels ? He
answered: What contradiction do you adduce? They are two
different persons, and differ in their opinions. When Rabhin
came from Palestine he said that R. Johanan has declared plainly
that the same is the case with a slave when killed, even unin-
tentionally, and that he deduced it from the word " if," as ex-
plained above.
*' A male or female minora The rabbis taught: It is
written [ibid. 31]: ** If he gore a son or gore a daughter; " that
is, to make one liable for little children as for grown persons.
But is this not common-sense ? There is a liability of a human
being for a human being, and the same liability is of an ox for
a human being; as in the former there is no difference as to
whether young or old, so also in the latter case, and this can be
inferred also by the following a fortiori conclusion: In the case
of human beings, in which the murderer is guilty only when he
is a grown-up person, but not a child, for it is written plainly
** man " (and a child is not called ** man "); in the case of an ox,
in which there is no difference as to whether it is old or young (as
the Scripture calls him ox from the very same day he was born,
Lev. xxii. 27), so much the more that he shall be guilty for
children as well as for grown persons. Why, then, is a verse
needed ? Nay (as to all that was said above could be objected
thus) : In the case of human beings there is a liability for the
four certain things, which is not the case with an ox, and one
might say, as in the case of an ox, there is no liability for the
four things; so also should there be a distinction between chil-
* The text reads " Im," which literally means "if"; Leeser, however, translates
it " but," according to the sense of the verse.
loo THE BABYLONIAN TALMUD.
dren and grown persons ; hence the above passage. From this
passage we deduce only as to a vicious ox; whence do we know
that as to a non-vicious one ? This is common-sense: As there
is a liability for a grown man or woman, and the same liability is
for children, and as to grown persons no distinction is made
between a vicious and non-vicious ox, the same is the case with
children. This can also be inferred by a fortiori conclusion:
Grown persons, who are responsible for their acts, if they were
killed by an ox there is no distinction made between a vicious
and non-vicious one; so much the less in case of children, w^ho
are not responsible for their acts, that no distinction is to be
made whether the ox was vicious or not. Is it not against the
rule to draw an a fortiori conclusion from a rigorous one to a
lenient one to make the lenient rigorous ? (It is deduced that
no distinction is made between a vicious and non-vicious ox in
regard to grown persons from the case of the children, and the
verse, " If he gore a son," etc., speaks of a vicious ox; now you
compare again the case of children to the case of grown persons,
to say that as there is no distinction, so is none here, conse-
quently you draw from the rigorous one, i.e., grown persons,
which is based only upon common-sense, to the case of children,
where the Scripture says plainly that the ox must be vicious, and
consequently lenient, as it can be said that only a vicious and
not a non-vicious is meant, to make a non-vicious also liable.)
And still we can say that the case of children is more lenient,
for children are free from observance of the Law, which is not
the case with grown man; therefore it is written: " If he gore
a son, or gore a daughter," the repetition of " gore" being
superfluous, to teach us that there is no distinction between a
vicious and non-vicious ox, between injured and killed, and in
all cases it must be paid.
MISHNA VI. : An ox that was rubbing against a wall where-
by the wall fell upon a human being and killed him ; if the ox
intended to kill an animal and killed a man, or a non-viable child
and killed a viable one, he is free.
GEMARA: Said Samuel: He is free from death, but he is
liable to pay the atonement money. Rabh, however, says that
he is free from both. But why shall atonement money be paid ?
Is he then not non-vicious ? (Is it not said that he was rubbing
against the wall, in which case he is surely non-vicious, at least
in this case ?) As Rabha explained this {post, page 1 12), that it
was vicious in this respect as to fall into pits, so also here that
TRACT BABA KAMA (THE FIRST GATE). loi
it was vicious in rubbing against the wall. But if so, then he
must be put to death. It would be correct in the case of
Rabha's explanation cited concerning a pit, because he noticed
therein vegetables, and intending to eat of them he fell in, but
in this case here what can be said ? He was rubbing against the
wall to derive benefit. How do we know that ? From the fact
that he continued rubbing even after the falling of the wall.
But then is this the proximate cause ? Is it not the remote
cause, as digging up gravel ? Said R. Mari, the son of R.
Kahana: The case was that the wall was little by little removed
by his rubbing until the very moment it fell, and therefore it
was the proximate cause, but still there was no intention to kill.
There is a Boraitha which is a support to Samuel and an ob-
jection to Rabh, namely: " There are cases in which the ox is
put to death and the owner pays atonement money, and there
are other cases in which atonement money is paid, but the ox
is not put to death, and still others in which the ox is put to
death, but no atonement money is paid, and finally such cases
in which there is no liability to either. How so ? If there are
both viciousness and intention, both atonement money is paid
and the ox is killed. If viciousness without intention is pres-
ent, atonement money only; non-viciousness but intentional,
the ox is put to death, but no atonement money. Non-vicious-
ness without intention, no liability at all. But if, however, he
has done damage unintentionally R. Jehudah holds him liable
and R. Simeon holds him free." What is the reason of R.
Jehudah's decision ? He compares it to atonement money: as
the latter is to be paid if unintentional, so also in damages; and
R. Simeon compares it to the killing of the ox : as the ox is not
to be killed if it was unintentional, so also is the case with
damages.
' * If the ox intended to kill an animal, ' ' etc. But how is the
case if it intended to kill one man and killed another, is there
a liability ? If so, then this Mishna will not be in accordance
with R. Simeon of the following Boraitha, in which he says
" that even if he intended to kill one man and killed another he
is also free." And his reason is because it is written [Ex. xxi.
29]: " The ox shall be stoned, and its owner," etc. The killing
of the ox is equal to the death of its owner: as the owner cannot
be put to death unless he killed this man intentionally, so also
the ox is not killed unless it killed this man intentionally. But
whence do we deduce that it is so in case of murder ? Because
I02 THE BABYLONIAN TALMUD.
it is plainly written [Deut. xix. ii]: " And he lie in wait for
hifUy and rise up against him," etc., which indicates that he
must have the intention for the man he killed.
MISHNA VII.: An ox belonging to a woman, to orphans,
or their guardian, or an ownerless ox, or an ox belonging to the
sanctuary, or the ox of a proselyte who died without heirs, all
those (if they kill a man) are put to death. R. Jehudah, how-
ever, holds that an ownerless ox, or that belonging to the sanc-
tuary or to the proselyte in question are not put to death, for the
reason that they have no owners.
GEMARA: The rabbis taught: "The word 'ox* is re-
peated seven times in the chapter of the Scripture treating of
the goring of a man by an ox, which repetition means to include
all those kinds of oxen stated in the Mishna. R. Jehudah,
however, says that notwithstanding these repetitions, an owner-
less ox, or one belonging to the sanctuary or to a proselyte are
not put to death, because they have no owners. Said R. Huna:
R. Jehudah makes him free even if he was consecrated or de-
clared ownerless after the goring. Whence this theory ? Be-
cause it is repeated in R. Jehudah's statement, " an ox that is
ownerless or one belonging to a proselyte," etc., are they not
both equally ownerless ? Hence for the purpose stated. And
so it is plainly stated in the following Boraitha: Furthermore,
R. Jehudah said : Even if it was consecrated or made ownerless
after goring, they are also free, as it is written [Ex. xxi. 29] :
" And warning had been given to his owner," etc., which means
that it is put to death then only when during the bringing to
the court, the judgment, and its execution its owner is still in
existence.
MISHNA VIII. : An ox that was sentenced to be put to
death and his owner consecrated him, he is not consecrated. If
his owner slaughtered him, his meat is prohibited. If, however,
this was done before the completion of the sentence, he is con-
secrated, and if slaughtered his meat may be used.
If one delivered his ox to a gratuitous bailee or borrower, to
a bailee for hire, to a hirer, all those substitute the owner as to
responsibility for damage: a vicious one pays the whole, and a
non-vicious one the half.
GEMARA: The rabbis taught: " An ox that killed a man;
if before sentence he was sold or consecrated the act is valid, if
slaughtered his meat may be used. If the bailee returned him
to his owner the act is valid. If, however, all those enumerated
TRACT BABA KAMA (THE FIRST GATE). 103
were done after sentence, neither of those acts is vaUd. R.
Jacob, however, said that as regards the bailee the act is valid
even if after sentence, and the point of their difference is thus:
Whether the ox may be sentenced in its absence from before the
court. The rabbis hold that the sentence must be pronounced
in the presence of the ox. Now the owner may say to the bailee :
If you would have returned him to me before sentence, I would
have driven him away into the swamp (so that he could not be
brought before the court), and R. Jacob, however, holds that as
the sentence may be pronounced in his absence, there is no differ-
ence. What is the reason for the rabbis* theory ? The verse
quoted above, ** The ox shall be stoned, and his owner," etc.,
from which is to infer that the ox is in this respect equal to his
owner, as his owner could not be sentenced to death in his ab-
sence, the same is the case with the ox. R. Jacob, however,
objected and said: The owner is different, because he could
argue before the court, but for what purpose is the presence of
the ox necessary in the court ?
" If he delivered him to a bailee,'' etc. The rabbis taught:
The following four substitute the owner: The gratuitous bailee,
the borrower, the bailee for hire, and the hirer. If the ox under
the control of the above killed a man while being non-vicious,
he must be put to death, and no atonement money is paid ; if
while being vicious, also atonement money is paid ; and all of
them with the exception of gratuitous bailee must pay the value
of the ox to its owner. Let us see how was the case. If they
guarded him as required, let all of them be free; if they have
not guarded him as required, let even the gratuitous bailee also
pay ? The case was that they have not sufficiently guarded
him. For the gratuitous bailee it is considered sufficient, and
therefore he is free, but for all others it is not sufficient (because
a greater degree of care is required of them). Let us see, accord-
ing to whom is this Boraitha ? If according to R. Meir, who
says that a hirer is equal to a gratuitous bailee: ** Why did not
the Boraitha add to the gratuitous bailee also the hirer ? And
if it is according to R. Jehudah, who says that a hirer is equal to
a bailee for hire, why did not the Boraitha add to the gratuitous
bailee also that all of them in the case of a vicious ox are free
from atonement money " (as R. Jehudah holds that even slight
care is sufficient for the above substitutes) ? Said R. Huna b.
Hinua: The Boraitha is in accordance with R. Eliezer, who says
that there is no guard for a vicious ox unless the knife, and he
I04 THE BABYLONIAN TALMUD.
also holds according to R. Jehudah, who says that the hirer is
equal to a bailee for hire. Abayi, however, says that the Bo-
raitha is in accordance with R. Meir, and it is as Rabbah b.
Abuhu changed the statement of the rabbis as follows: One
who hires an ox, how shall he pay ? R. Meir says, as a bailee
for hire, and R. Jehudah says, as a gratuitous bailee.
R. Elazar said: One who delivered his ox to a gratuitous
bailee, and the ox did damage, the bailee is liable, but if he was
injured he is free. Let us see how the case was. If the bailee
agreed to guard him against injury, then let him be responsible
if even he was injured, and even he did not let him be free even
if he ^/^ damage. Said Rabha: The case was that he </^^ take
the responsibility, but he knew at the time that he was a goring
ox, and common-sense dictates that his intention was to guard
him against goring as it was his habit, but it could not enter his
mind that he will be gored by others.
MISHNA IX. \ If its owner properly tied him and locked
him up, and still he broke out and did damage, be it a vicious
or a non-vicious one there is a liability. Such is the dictum of
R. Meir. R. Jehudah, however, holds that a non-vicious is
liable, and a vicious is not, for it is written [Ex. xxi. 29] : " And
he hath not kept him in," but here he had. R. Eliezer, how-
ever, says there is no guard for a vicious ox except the knife.
GEMARA: We have learned in a Boraitha: R. Eliezer b.
Jacob said: " Whether vicious or non-vicious, if they were
slightly guarded (from negligence) he is free from the whole
damage." The reason for this is because he is in accordance
with R. Jehudah, who said above that slight care is sufficient
for a vicious ox, and he holds that even a non-vicious ox must
also be guarded from the analogy of expression " gore." As in
the case of a vicious one it is plainly written, " He hath not kept
him in," so also it is in case of a non-vicious.
R. Ada b. A'hba said : R. Jehudah made him free (in our
Mishna) from viciousness, but not from ;?^«-viciousness {i.e., he
must still pay half).
Rabh said: If he was vicious to gore with the right horn he
is not considered vicious as to the left horn. According to
whom is Rabh's saying ? (The saying of Rabh is certainly not
regarding the payment, as it is certain that even when he was
vicious toward human beings he is not considered vicious toward
an animal, and it is therefore self-evident that if it was known
to be vicious with his right horn, no claim can be made that the
TRACT BABA KAMA (THE FIRST GATE). 105
whole must be paid if he gored the first time with the left horn.
Rabh's saying therefore must be interpreted to have reference
to " taking care.") If it is in accordance with R. Meir even a
non-vicious one must be taken good care of ? And if according
to R. Jehudah, who holds that only slight care is sufificient, then
why is it necessary to make the distinction between viciousness
and non-viciousness, as to goring with left and right horns : there
is a distinction also in the very case of the right horn, viz., if no
care at all was taken of him then the viciousness prevails, but if
any care at all was taken of him, only the non-viciousness pre-
vails and the viciousness is gone ? It can be said that he is in
accordance with R. Jehudah, but he does not hold of the theory
of R. Ada b. A'hba. And Rabh's saying is to be explained
thus: To find in one and the same ox both viciousness and non-
viciousness, it can be only when he was vicious to gore with the
right and not with the left horn ; but if he was vicious as to both
horns, then the element of non-viciousness can no more be found
in him {i.e., if no care at all was taken of him he is vicious in all
respects, but if any care at all was taken the viciousness is gone
and the non-viciousness remains).
" R. Eliezer says for a vicious ox,'' etc. Said Abayi : The
reason for R. Eliezer's saying is as we have learned in the fol-
lowing Boraitha: R. Nathan said: Whence do we deduce that
one must not raise a noxious dog in his house, nor maintain a
defective ladder? For it is written [Deut. xxii. 8]: " That thou
bring not blood upon thy house."
CHAPTER V.
RULES CONCERNING A GORING OX ; EXCAVATIONS ON PUBLIC AND
PRIVATE premises; EXCAVATIONS MADE BY PARTNERS, ETC.
MISHNA /. : Should an ox gore a cow and the new-born
calf be found dead at her side, and it be not known whether she
gave birth to it before the goring or by reason of the goring, the
owner of the ox pays half the damage for the cow and one-
fourth for the calf. So also should a cow gore an ox and her
new-born calf be found alive at her side, and it be not known
whether she gave birth before the goring or by reason of the
goring, the owner of the cow pays half the damage from the
body of the cow and one-fourth from that of the calf.
GEMARA: Said R. Jehudah in the name of Samuel: This
is the dictum of Summachus, who holds that money about
which there is a doubt as to whom it rightly belongs, must be
divided. But the sages said : There is a principal rule — the
burden of proof is upon the plaintiff. [For what purpose is the
statement that there is a principal rule ? It was necessary that,
even when the plaintiff claimed positively while the defendant
only said that he was doubtful about it (in which case one might
say that there need be no proof at all), this rule apply.] The
same we have also learned in the following Boraitha (the exact
statement of the Mishna with the addition): This is the dictum
of Summachus, but the sages say that the burden of proof is
upon the plaintiff.
Said R. Samuel b. Na'hmani: Whence is this rule deduced ?
From [Ex. xxiv. 14] : ** Whoever may have any cause to be de-
cided, let him come unto them." That means, he shall produce
proof before them. R. Ashi opposed: Why is a verse neces-
sary ? Is it not common-sense that one who feels pain goes to
a physician ? We must therefore say that this verse applies to
the saying of R. Na'hman in the name of Rabba b. Abbuhu :
Whence is it deduced that in case of a claim and counterclaim
the claim must first be passed upon and judgment awarded and
executed, and then the counterclaim must be proved (as at this
106
TRACT BABA KAMA (THE FIRST GATE). 107
stage the former defendant Is now the plaintiff) ? From the
above-quoted passage, which means that the plaintiff who has
the cause to be decided shall be heard first. The sages of
Nahardea, however, said that in some cases it might happen
that the counterclaim must be passed upon first, and that is in
case the judgment, if awarded against the defendant, would
have to be collected from the latter's real estate; for if the judg-
ment were allowed to be collected before the counterclaim was
proved, the estate would sell much cheaper than if he should
prove his counterclaim and sell his estate at a proper price.
" So also should a cow gore an ox," etc. Half and a. quarter
of the damage ! Why three-quarters — he has to pay only half ?
Said Rabha: The Mishna meant to say thus. If the cow is
there, one-half of the damage is collected from the body of the
cow; but if she cannot be found, one-quarter is collected from
the body of the calf, and the reason is because it is doubtful
whether the calf was with its mother at the time of the goring
or not ; but if we should be certain that it was, half would be
collected from the body of the calf.
This decision of Rabha is in accordance with his theory else-
where as to a cow that has done damage — the same may be col-
lected from its offspring, because the latter is considered a part
of her own body. A hen that has done damage — the latter
cannot be collected from her eggs, for the reason that they are
completely separated from the hen and it does not care any
more for them.
Rabha said again (in the first instance, when the ox gored
the cow) : The cow and her offspring are not separately ap-
praised, but both of them together {l.e,, the value of the cow
before giving birth and that after she gave birth, and not the
value of the cow separately and that of the calf separately) ; for
otherwise it would work too much harm to the defendant. The
same is the case if one cut off the hand of his neighbor's slave
or if one damage his neighbor's field (that is, in each of those
cases the value prior to doing the damage and that after doing
the damage is ascertained, and thus the damage is appraised,
and not by appraising separately the damaged part and the
main body). Said R. A'ha the son of Rabha to R. Ashi: If in
reality the law is so, what do we care for the defendant ? let him
suffer. Why, then, did Rabha protect him ? Because the de-
fendant might say: ** I caused injury to a gravid cow, and there-
fore the appraisement must also be made of such a cow."
io8 THE BABYLONIAN TALMUD.
It is certain, if the cow belonged to one person and the calf
to another, that for the reduction of the fatness it must be paid
to the owner of the cow; but for the depreciation on account of
the reduction in fulness, to whom is this to be paid ? {I.e., if
while the cow was gravid the owner of the cow sold the calf to
be born to another person, and through the injury the cow mis-
carried, and by reason thereof the cow became reduced both in
fatness and in fulness (figure), both of which are elements mak-
ing up the value of a cow; now, for the reduction in fatness the
owner of the cow must be paid, for the calf has not contributed
to it ; but for the depreciation on account of the decrease in the
fulness, shall the owner of the calf be paid ? for the calf gave
her that fulness, or both the cow and the calf contributed to it,
and the value of this damage must be divided.) R. Papa says
it is paid to the owner of the cow only. R. A'ha the son of R.
Iki says that it must be divided, and so the Halakha prevails.
MISHNA //. : A potter that placed his pottery in the court
of another without his permission, and the court-owner's cattle
broke them, there is no liability. If the cattle were injured
thereby, the potter is liable. If, however, he placed them there
with permission, the court-owner is liable. The same is the case
with one who placed his fruit in another's courtyard and it was
consumed by an animal of the court-owner. Should one lead
his ox into the court of another without permission and it be
gored by the ox of the court-owner, or be bitten by his dog,
there is no liability. If, however, the ox in question gored the
court-owner's ox, or it fell into .the well and spoiled the water,
he is liable. If the court-owner's father or son was in the well
(at the time, and was killed), he must pay atonement money.
If, however, he led it there with permission, the court-owner is
liable. Rabbi, however, says that in all these cases the court-
owner is not liable unless he expressly undertook to take care of
the ox.
GEMARA: Is the reason for the statement in the first part
of the Mishna only because he placed them without permission,
but if with permission the potter would not be liable for injuries
to the animals of the court-owner, and we do not say that it is
implied that the potter has assumed the care of the animals,
and this can be only in accordance with Rabbi, who holds that
wherever it is not expressly assumed there is no implied assump-
tion to take care ? Now, the latter part, which states: " If he
placed them there with permission the court-owner is liable," is
TRACT BABA KAMA (THE FIRST GATE).
09
certainly in accordance with the rabbis, who hold that there is an
implied assumption even when nothing was expressly men-
tioned ; and in the last part Rabbi declared that in all cases he
is not liable unless the court-owner expressly assumed the care ;
hence the first and last parts will be in accordance with Rabbi,
and the middle part in accordance with the rabbis ? Said R.
Zera: Separate the clauses, and say that the one who taught
this part did not teach the other. Rabha, however, says: The
whole Mishna can be explained to be in accordance with the
rabbis, and that the case was that he entered with permission
and the court-owner assured the safety of the pottery (and the
potter assumed nothing), in which case he is responsible if even
the wind should break them.
" If he placed his fruity ' ' etc. Said Rabh : The case is only
if she slipped on account of them ; but if she consumed them
(and by reason thereof died) there is no liability, for she was not
compelled to eat them.
Come and hear: ** One who led his ox into another's court-
yard, and it consumed wheat which caused it diarrhoea and it
died, there is no liability. If, however, he led it in with per-
mission, the court-owner is liable." Why not argue here the
same way, and say that it was not compelled to eat ? Said
Rabh: " You wish to contradict a case with permission by a
case without permission ? In the former event he assured the
safety of the ox, and therefore he is liable if even the ox should
choke himself."
The schoolmen propounded the following question : " When
he assured the safety of the ox, did it only extend to himself
{j.e.y to protect the ox against the injury by his own animals),
or also to all cattle?" Come and hear: " R. Jehudah b.
Simeon taught in Section Damages, of the school of Qarna: If
one placed his fruit in the courtyard of another without permis-
sion and an ox came from some other place and consumed it,
he is free; if, however, with permission, he is liable. Who is
liable and who is free — is it not the court-owner ? " (Hence we
see that he must guard him also against injury by others ?)
Nay, it may be said that it has reference to the owner of the ox.
If so, what difference is there whether it was with or without
permission? There is: If with permission, it is to be consid-
ered the premises of the plaintiff, in which case the tooth is
liable (for as soon as the court-owner allowed him to enter he
thereby assigned him room in his court) ; but without permis-
no THE BABYLONIAN TALMUD.
sion, it cannot be considered that he consumed it " in another
man's field," which is required in the case of the tooth, and
therefore there can be no liability.
Come and hear: " If one lead his ox into a courtyard with-
out permission and an ox come from another place and gore
it, he is free; if, however, with permission, he is liable."
Who is free and who is liable — is it not the court-owner ? Nay,
it is the owner of the ox. If so, what difference is there whether
with or without permission ? The Boraitha is in accordance
with R. Tarphon, who says that there is an extra rule as to the
horn if on the premises of the plaintiff, in which case he pays
the whole. Now, if with permission, it is considered the prem-
ises of the plaintiff (for the reason stated above) and he pays the
whole damage ; but if without permission, it is equal to the case
of the horn on public ground, in which case only half is paid.
It happened that a woman entered a house to bake, and the
house-owner's goat having consumed the dough, became fever-
ish and died. Rabha then made the woman pay for the goat.
Shall we assume that he differs with Rabh, who said that it was
not compelled to consume it ? What comparison is this ? There
it was without permission, and therefore the safety was not
assured; but here it was with permission, and therefore the
safety of the goat was assured by the woman (for the reason
stated further on, that in baking by a woman modesty is re-
quired, as she has to bare her arms and the owner of the house
cannot stay in the room ; it is therefore considered that he has
assigned the whole room to the woman, and therefore she is
responsible for the damage done to the house-owner). And
why is this different from the following case: If a woman enter
another's premises to grind her wheat without permission and
the house-owner's animal consume the wheat, there is no liabil-
ity. If, however, the animal was injured thereby, the woman is
liable. The reason then is because it was without permission,
but if with permission she would be free ? There is a differ-
ence: In case of grinding wheat, where no modesty is required
and the owner could be present, the care of the animal devolves
upon him ; but in case of baking modesty is required (as stated
above).
If one lead his ox into a courtyard,'' etc. Rabha said: One
who leads his ox into a courtyard without permission, and the
ox digs an excavation in the courtyard, the owner of the ox is
liable for the damage caused to the court, and the court-owner
TRACT BABA KAMA (THE FIRST GATE). in
is liable for the damages caused by the excavation (if he re-
nounced ownership), although the Master said elsewhere, on the
strength of the passage [Ex. xxi. 33] : "If a man dig a pit," a
man, and not an ox ; for here in this case he had to fill up the
pit (before renouncing ownership), and by not so doing it is
considered as if he dug it.
Rabha said again : ** One who leads his ox into a court with-
out the permission of its owner, and it injures the owner, or the
latter is injured through it, he is liable. If, however, it lie down
(and by doing so breaks vessels, or while being in such a position
the court-owner stumbles over it and is injured), there is none."
Does, then, the lying down relieve him from liability ? Said R.
Papa: Rabha means, not that the ox itself lay down, but that it
lay down (voided) excrement and thereby soiled the vessels of
the court-owner, in which case the excrement is considered a
pit ; and we do not find that there is a liability for damage to
vessels by a pit. This would be correct according to Samuel,
who holds that any obstacle is considered a pit ; but as to Rabh,
who holds that it is not considered a pit, unless ownership is
renounced, what can be said ? Generally from dung ownership
is renounced.
Rabha said again : If one enter a court without permission
and injure the court-owner, or the latter be injured through him
(by jostling against him), he is liable; if the court-owner injure
him, he is free. Said R. Papa: " This was said only in case the
court-owner has not noticed him; but if he has, he is liable."
What is the reason ? Because he can say to him: " You have
the right only to drive him out, but not to injure him." And
each follows his own theory, for Rabha, and according to others
R. Papa, said: If both of them were there with permission {e.g.,
on a public highway), or both of them without permission, if
one injure the other (by striking with the hand, although un-
intentionally), both are liable (for as to damages there is no
difference whether with or without intention); but if one was
injured through the other (as by jostling), they are free. The
reason, then, is because both of them were either with or with-
out permission ; but if one was with and the other one without
permission, the one who was with permission is free and the
other is liable.
'' If he fall into the pit and spoil the water , ' ' etc. Said
Rabha: This was taught only when it was spoiled through the
body {e.g., when the body was soiled); but if it was so because
112 THE BABYLONIAN TALMUD.
of the (putrefied) smell, he is free. And the reason is, because
the carcass is only the germon (origin) of the smell, and for ger-
vton there is no liability.
" If his father, his son,*' etc. Why so ? Is he not a non-
vicious one ? Said Ula: It is in accordance with R. Jose the
Galilean, who holds, with R. Tarphon, that the horn on the
premises of the plaintiff pays the whole damage, so also here he
pays the whole sum of atonement money, and for that reason
he teaches, ** if his father," etc., to indicate that it was the
premises of the plaintiff.
** If he lead him in with permission^' etc. It was taught:
" Rabh said: The Halakha prevails according to the first Tana,
while Samuel holds that the Halakha prevails according to
■Rabbi."
The rabbis taught: "If he said: * Lead in your ox and take
care of him,' if he did damage, he is liable; if he was injured,
there is no liability. If he, however, said: * Lead in your ox
and /will take care of him,' the reverse is the case." Is there
not a difficulty in the explanation of the Boraitha ? First it
states, if he told him to lead in the ox and to take care of him
he is liable if he did damage, etc. — then the reason is because
he told him expressly to take care of him ; but if nothing was
said as to care, the reverse would be the case, for the reason
that, when nothing is mentioned, the court-owner impliedly
assumes the care. How, then, should the last part: ** If he,
however, told him: ' Lead in your ox and /will take care of
him,' etc., be explained ? Is it not to infer that the reason was
because he expressly said that he would take care of him, but if
nothing was said as to care, the owner of the ox is liable and
the court-owner is free, for the reason that under such circum-
stances the court-owner does not assume the care, which is
according to Rabbi, who holds that the court-owner is not liable
unless he expressly assumes the care, and so the first part would
be according to the rabbis and the last part according to Rabbi ?
Said Rabha : The whole Mishna can be explained to be in accord-
ance with the rabbis, thus : Because it states in the first part
" and you take care of him," it states also in the last part, " and
/ will take care of him. ' ' R. Papa said : The whole Mishna may
be explained in accordance with Rabbi, but that he holds with
R. Tarphon, who says that the horn on the premises of the
plaintiff pays the whole, and therefore if he tell him, " Vou take
care," the court-owner has not assigned him any room, and thus
TRACT BABA KAMA (THE FIRST GATE). 113
it is to be considered as the horn on the premises of the plain-
tiff, which pays the whole ; but if he keep silent, it is considered
that he has assigned him room in the court, and thereby the
court becomes a partnership, and under such circumstances only-
half is paid.
MISHNA ///. : If an ox intend to gore another ox, and in-
jure a woman and cause her to miscarry, the owner of the ox is
free from paying for the child. If, however, a man intend to
hurt another man, and hurt a woman and cause her to miscarry,
he must pay for the child. How is this payment made ? The
woman is appraised as to the difference in her value (as a slave)
before and after she gave birth. Said R. Simeon b. Gamaliel :
If so, then her value increases after giving birth. We must
therefore say that the worth of the infant is appraised and its
value is paid to her husband if she has one, or to his heirs if she
has no husband. If she was a manumitted slave or a proselyte,
there is no liability.
GEMARA : The reason is only because it intended to gore
another ox, but if it originally intended to gore the woman he
is liable for the infant. Shall we assume that this is a contra-
diction to R. Ada bar A'hba, who said elsewhere that even in
such a case there is no liability ? Nay, R. Ada b. A'hba may
answer that, even according to our Mishna, there is no liability
even if it intended to gore the woman. But why does the
Mishna say that it intended to gore another ox ? Because in
the last part it states a case where a man intended to injure
another one, in which it is essential, for so states the Scripture;
therefore the same expression was used.
" How is this payment to be made,'' etc. The value of the
infant ? It ought to read " the increased valuation caused by
the infant " ? (for so does the Mishna state, that the woman is
" appraised," etc.). It really means: " How does he pay the
value of the infant and the increased valuation caused by the
infant ? The woman is appraised," etc.
" Said R. Simeon b. Gamaliel,'' etc. What does he mean 1
Said Rabha: He means thus: Is, then, the value of a woman
during pregnancy higher than after she gives birth— is not the
reverse the fact ? We must therefore say " that the worth of
the infant," etc., and so also we have learned in a Boraitha else-
where. Rabha, however, says: He means thus: Does, then,
the increase in value of the woman belong wholly to the hus-
band, and she has no share in the increase of value caused even
8
114 THE BABYLONIAN TALMUD.
by her infant ? The infant is appraised and its value paid to
the husband, and the money for the increase in valuation is
divided between the husband and the wife. We have so also
learned plainly in a Boraitha, with the addition that each item
must be separately appraised: the pain, the damage; the value
of the infant, however, must be paid to the husband only, but
the increase in valuation caused by it must be divided. If so,
then the two statements of R. Simeon b. Gamaliel contradict
each other ? This presents no difificulty. The one case is that
of a first-birth, and the other is not.
And the rabbis, who hold that the increase in valuation also
belongs to the husband, what is their reason ? As we have
learned in the following Boraitha: From the Scripture, which
reads [Ex. xxi. 22]: " And her children depart from her," do
I not know that she was with child ? Why does it state, " a
woman with child" ? To tell thee that the increase in value
caused by pregnancy belongs to the husband. R. Simeon b.
Gamaliel, however, applies the passage quoted to the following
Boraitha: R. Eliezer b. Jacob said: He is not liable unless he
struck her over the womb. And R. Papa explained the above
statement of R. Eliezer b. Jacob, that he does not mean the
womb only, but any part of the body except the arm or foot.
" If she zvas a bondivoman,'" etc., '' or a proselyte womariy* etc.
Said Rabba : This is to be explained that he wounded her before
her husband died, in which case the deceased acquired title to
the money to be paid, and upon his death the same is inherited
by the defendant, in whose possession the money still is (and so
is the law as regards the property of a proselyte who died with-
out leaving heirs); but if he wounded her after the death of her
husband, the money is to be paid to her. Said R. Hisda:
" Who is the author of this statement ? Are, then, children as
packages of money, that their ownership may pass from one to
another ? Where there is a husband alive the Scripture made
an exception, in that the money to be paid should belong to
him ; but where there is none, no payment at all is to be made."
Regarding this statement the Tanaim of the following Boraitha
differ: " An Israelite's daughter that was married to a proselyte
and she has conceived by him, and some one wounded her, if
during the lifetime of the proselyte, the value of the infant goes
to him ; if after his decease, one Boraitha states that the defend-
ant must pay to the mother and another Boraitha states that he
is free.*'
TRACT BABA KAMA (THE FIRST GATE). 115
According to Rabba's theory there is no doubt that the
Tanaim differ, but according to R. Hisda's theory, in accord-
ance with whom will be the Boraitha which states that he must
pay ? It is in accordance with Rabban Simeon b. Gamaliel,
who said that the mother gets one-half of the money to be paid
even when her husband is alive, and the whole if he is dead.
R. Iba the elder propounded the following question to R.
Na'hman : One who took possession of the documents of a
proselyte (which he held against the lands of an Israelite), what
is the law ? Shall we assume, of one who receives mortgages
on estates, that his main intention is to take possession of the
lands, and whereas of the latter the proselyte has as yet not
taken possession, the one who took possession of the documents
has acquired no title, because these documents are not consid-
ered property, or is it considered that the proselyte's intention
was also as to the documents (and so they are his property) ?
He said to him : Answer me, my Master, could the intention of
the proselyte be to wrap up a bottle in them ? He answered:
Yea, it may have been also for that very purpose.
Rabba said: "If an Israelite's pledge is in the hands of a
proselyte and the latter dies, and another Israelite comes and
takes possession of it, he may be deprived of the possession (by
the owner of the pledged article). Why so ? Because as soon
as the proselyte died the lien on the pledge became null and
void. If, however, a proselyte's pledge is held by an Israelite
and the proselyte dies, and another Israelite takes possession of
it, the pledgee has his lien on the pledge to the extent of his
debt and the other one acquires title as to the balance. Why
should not the pledgee's premises (on which the pledge is
located) acquire the title for its owner ? Did not R. Jose b.
Hanima say that one's premises acquire title for their owner
even without his knowledge ? It may be explained that he was
not there, and therefore when the owner is there, and he wishes
he himself could acquire title, his premises can also do so for
him ; but where there is no owner to acquire title himself, his
premises cannot do so for him. And so the Halakha prevails.
MISHNA IV. : One who digs a pit on private ground and
opens it into public ground, or vice versUy or on private ground
and opens it into the private ground of another person, is liable.
GEMARA: The rabbis taught: One who digs a pit on pri-
vate premises and opens it into public premises is liable ; and
this is the kind of a pit that was meant by the Scripture. Such
ii6 THE BABYLONIAN TALMUD.
is the dictum of R. Ishmael. R. Aqiba says: The pit men-
tioned in the Scripture is where one renounced ownership to his
premises (on which there was a pit), but did not renounce it to
the pit. Said Rabba: As to a pit on public ground, all agree
that there is a liability, but as to one on one's own premises,
R. Aqiba holds that even in such a case there is a liability, for
it is written [Ex. xxi. 34]: "The owner of the pit"; that
means that the Scripture meant a pit that has an owner, while
R. Ishmael holds that it means the one to whom the cause of
the injury previously belonged. But what does R. Aqiba mean
by his saying, "That is the pit meant by the Scripture" ?
Thus : Why should this case be free from payment ? Is this
not the very^ase with which the Scripture began as regards
payment ? * R. Joseph, however, says, that as to a pit on pri-
vate premises all agree that there is a liability, for the reason
stated by R. Aqiba; they only differ as to a pit on public
ground. R. Ishmael holds that one is also liable in such a case,
thus: It is written [ibid., ibid. 33]: " And if a man open a pit,
or if a man dig a pit " ; now, if for the opening one is liable, so
much the more is he for the digging ? We must therefore say
that the liability came to him because of the digging and open-
ing only {i,e.y that neither the premises nor the pit is his, as
being on public ground). R. Aqiba, however, may explain it
thus: Both statements are necessary, for if the Scripture should
state only as to the opening, one might say that only in case of
opening it is suflficient to cover it, but in case of digging it is
not, unless he stuff it up ; and if the Scripture should state only
the digging one might say that only in such a case it must be
covered, for he has done some substantial act ; but in case of
opening only there is no need even to cover it, for no substan-
tial act was done. Hence the necessity of both verses. And
what does R. Ishmael mean by his statement, " This is the
pit," etc.? He means that this is the pit with which the pas-
sage began as to damages.
There is an objection from the following : One who digs a
pit on public ground and opens it into private ground is free,
although it is not permitted to do so, for the reason that no
excavation must be made under public ground. One who digs
* Rashi explains that of the pit mentioned as regards payment it is plainly written,
"the owner of the pit shall pay" ; of a pit, however, on public ground the Scrip-
ture begins with, " If one open a pit " — and the Mishna treats of one that dug a. pit.
Hence R. Aqiba's statement.
TRACT BABA KAMA (THE FIRST GATE). 117
a round, oval, or obtuse-angle-shaped pit on private ground and
opens it into public ground is liable. And one who digs pits
on private premises adjoining public ground, as, for instance,
those who dig pits to lay foundations for buildings, is free. R.
Jose b. Jehudah, however, makes him liable, unless he put up
a partition ten spans high, or unless the pit was at least four
spans distant from the pathway for man and beast. Now the
first Tana holds him free, because it was for laying foundations;
but otherwise he would also hold him liable ? (Hence there is
a liability for a pit on one's own premises ?) According to
whose theory is the statement of the first Tana ? It would be
correct according to Rabba, for it could be explained that the
first part is according to R. Ishmael and the last part according
to R. Aqiba; but according to R. Joseph, the last part is in
accordance with all and the first part in accordance with none ?
R. Joseph may say that the whole Boraitha is in accordance
with all, but the first part treats of a case where he renounced
ownership neither to the premises nor to the pit (and although
he must not do so, nevertheless there is no liability). Said R.
Ashi : Now that we arrive at the conclusion that according to
R. Joseph's theory the Boraitha is in accordance with all, the
same may be explained also according to Rabba' s theory that
the whole Boraitha is in accordance with R. Ishmael ; but the
reason why, according to your inference, there would be a liabil-
ity, if it is not for laying a foundation, is because he extended
the excavation under the public ground (and therefore, if not
for laying foundations, it should be considered digging on public
ground).
The rabbis taught : One who digs and opens a well and de-
livers it over to the community is free (if any accident hap-
pened). Otherwise he is liable. And so also was the custom
of Nehunia the pit-digger, to dig and open wells and deliver
them over to the community. And when the rabbis heard of it,
they said: " He is acting in accordance with the Halakha."
The rabbis taught : It happened to the daughter of the
very same Nehunia, that she fell into a large well. They came
and informed R. Hanina b. Dosa of it. During the first hour
he said to them: " Go in peace " ; and so also during the sec-
ond. At the third (when there was fear that she might have
died), he said that she was out already and saved. When the
girl was asked who saved her, she said that a ram passed by led
by an old man (the ram of Isaac led by Abraham), who saved
ii8 THE BABYLONIAN TALMUD.
ner. When R. Hanina b. Dosa was asked whether he knew of
her safety by prophecy, he said : I am no prophet, nor am I the
son of a prophet, but I thought to myself, " Can it be that the
children of that upright man (Nehunia, who was digging wells
to enable the pilgrims to drink water from them) shall die by
the very thing he was taking so much pains to prepare for the
welfare of Israel?" Said R. A'ha: Notwithstanding this, his
son died of thirst. The reason is, that the Holy One, blessed
be He, is particular with the upright around Him, even on a
hairbreadth, as it is written [Ps. 1. 3]: ** And round him there
rageth a mighty storm " * (and there must have been some sin
committed by Nehunia for which he was punished). R. Nehunia
says: From the following passage [ibid. Ixix. 8]: " God is greatly
terrific in the secret council of the holy ones, and fear-inspiring
over all that are about him." R. Hanina said: One who says
that the Holy One, blessed be He, is liberal (to forgive every
one his sins), his life may be disposed of liberally (for he encour-
ages people to sin), as it is written [Deut. xxxiii. 4]: ** He is
the Rock, his work is perfect ; for all his ways are just." R.
Hana, and according to others R. Samuel b. Na'hmani, says:
It is written [Ex. xxxiv. 6], ** Long-suffering" in the plural,
and not in the singular, to signify that He is long-suffering
towards the upright and also towards the wicked.
The rabbis taught: One shall not remove stones from his
own premises to public ground. It happened once that one did
so, and a pious one passing by at the time and seeing him do
that said to him: "Thou ignoramus, why dost thou remove
stones from premises not belonging to thee to thy own prem-
ises ? " He laughed at him. Some time later he was com-
pelled to sell his lands, and while walking on the public highway
in front of his former lands he stumbled over the stones he once
piled up. He then exclaimed: ** I see now that the pious one
was right in his saying! "
MISHNA V,\ One who digs a pit on public ground and an
ox or an ass falls into it (and is killed), he is liable. It matters
not as to the shape of the pit, whether round, oval, or a cavern,
rectangular or acute-angular, in all cases he is liable. If this is
so, then why is it written " pit" [*ll^] ? To infer from this
that as a round pit in order to be sufificient to cause death must
* The Hebrew term is " Nisarah," and the Talmud explains it to mean a " hair,'
from the Hebrew word "saar" (a hair).
TRACT BABA KAMA (THE FIRST GATE). 119
be no less than ten spans deep, so also all other forms must be
at least ten spans deep. If they were of less depth, however,
there is no liability for death; but for injuries there is.
GEMARA: Rabh said: The pit for which the Scripture
made one liable is because of the vapors (therein contained), but
not because of the shock (the animal receives). From this may
be inferred that Rabh holds that the vapors kill the ox for which
the digger of the pit is liable ; if the ox should be killed not by
the vapors, but by the shock received at the bottom of the pit,
there should be no liability, because the ground is considered
ownerless. Samuel, however, holds because of the vapors, and
so much the more because of the shock; and if one might say
that the Scripture meant only as to the shock and not as to the
vapors, and therefore if it should be proved that the death was
caused by the vapors and not by the shock there should be no
liability, it would be incorrect, for the Scripture is testifying that
the digger of a pit is liable, and even if the pit were filled with
wool sponges. On what point do they differ (for according to
both, if the ox was killed he must be paid for) ? The difference
is in case he formed a hill (ten spans high) on public ground
(from which the ox fell down and was killed) : according to Rabh
he is not liable, while according to Samuel he is. What is the
reason of Rabh's opinion ? The passage states [Ex. xxi. 33],
** Fall mto it," which signifies that there must be the usual way
of falling (into an excavation, and face downward), but accord-
ing to Samuel " fall " means in any manner.
There is an objection from our Mishna: If so, then for what
purpose is written ** pit," etc.? Now, it would be correct
according to Samuel, for the " so also," etc., would include
also a hill on public ground ; but according to Rabh, what does
this include ? It includes rectangular and acute-angular pits.
But are these not expressly stated therein ? They are first
stated, and then it is explained whence they are deduced ; and
it was necessary to enumerate all the forms of a pit, to teach
that in each of them there are sufficient vapors to kill, if they
are ten spans deep. It happened that an ox fell into a lake from
which the neighboring lands used to be irrigated, and its owner
slaughtered it. R. Na'hman nevertheless declared him trepha
(illegal, because, according to his theory, the limbs of the ox
were broken by the fall). The same, however, declared that if
the owner would spend only one kabh of flour in going around
and asking the law in his case, lie would learn that if the animal
I20 THE BABYLONIAN TALMUD.
under such circumstances should be alive twenty-four hours
after the fall it could be held fit for eating, and he would not
lose his ox, which is worth many kabhim of flour. From this
we see that R. Na'hman holds that an animal may be killed
from shock in a pit less than ten spans deep.
Rabha objected to R. Na'hman from our Mishna: ** If they
were less than ten spans deep and an ox or an ass fell into them
and was killed, there is no liability." Is not the reason because
there is no shock ? Nay, because there are no vapors. If so,
then why is it stated further: "If he be injured, he is liable."
Why so — there are no vapors ? He answered: ** There are no
vapors sufficient to kill, but sufificient to injure."
He again objected from the following Boraitha: It is written
[Deut. xxii. 8]: " If any one were to {tAX from there " — -this sig-
nifies that it means only from there, but not thtreznto. How
so ? If the level of the public highway were ten spans higher
than the roof of the house, so that some one might fall from the
highway to the roof, there is no liability (because there was no
obligation to make a battlement) ; if, however, the highway
were ten spans lower than the roof, there is a liability (for a
battlement has to be made). Now then, if shock in an excava-
tion less than ten spans deep also kills, why state Un ? He
answered: " This case is different, for it states * house,' and less
than ten cannot be called a * house.' "
MISHNA VL : When a pit belongs to two partners, and
one of them passes by and does not cover it, and so also does
the second, the latter only is liable.
GEMARA: Let us see. How can there be a pit of two
partners on public ground ? This case could be if we should
say that the Halakha prevails in accordance with R. Aqiba,
who holds one liable for a pit even if it be on his own premises,
and partnership in the pit would be possible if both partners dig
a pit on their premises and subsequently renounce their owner-
ship to the premises but not to the pit; but if the Halakha pre-
vails according to him who says that if one dig a pit on his own
premises there is no liability, how is it possible on the one hand
that there should be liability for the same pit on public ground,
and on the other hand how can there be a partnership pit on the
public ground ? Shall we assume that both of them together
hired an agent to dig the pit for them ? Is there not a rule that
there can be no agent to commit a transgression, for the agent
ought not to commit any transgression if even he was hired to
TRACT BABA KAMA (THE FIRST GATE). 121
do so ? Consequently the partners could not be responsible for
the acts of the agent. If we assume that the partnership con-
sisted in that each of them dug five spans deep, then there can
be no partnership, for the act of the first one can be taken into
account according to Rabbi's theory only as to injuries; but
even according to him as to death, and according to the rabbis*
theory as to both injuries and death, it cannot be counted.
How, then, can there be a partnership in a pit ? Said R. Jo-
hanan: It is possible if both of them together removed a lump
of earth from it which completed it to make it ten spans deep.
Where are the theories of Rabbi and his colleagues, men-
tioned above, stated ? In the following Boraitha: " If one dig
a pit nine spans deep and another one complete it to make it
ten deep, the latter one is liable. Rabbi, however, says: The
latter one only is liable in case of death, and both are liable in
case of injuries."
What is the reason of the rabbis' theory ? It is written
[ibid., ibid. 33] : " And if a ma7i dig a pit," which signifies that
it must be by 07ie only. Rabbi, however, explains this passage
to mean that it must be dug by a man and not by an ox.
The rabbis taught: " If one dig a pit ten spans deep and
another one complete it to make it twenty, and still another one
make it thirty deep, all of them are liable." There is a contra-
diction from what we have learned in the following: " If one
dig a pit ten spans deep and another one plaster and lime it (and
thereby makes it narrow and increases its vapors), the last one is
liable." Shall we not assume that the one case (where all are
liable) is according to Rabbi and the other is according to his
colleagues ?
Said R. Zbid : " Both maybe explained to be according to
Rabbi only, thus: The case where all are liable is correct, as
stated, and the case where only the last one is liable is where
there were originally in it not sufficient vapors even to injure,
and the other one by his acts produced so much vapors as to be
sufificient both to injure and kill."
Rabha said : " If one place a stone at the edge of a pit which
is less than ten spans deep and thereby complete its walls to
measure ten spans, whether he is responsible or not would raise
the same difference of opinion as between Rabbi and his col-
leagues stated above." Is this not self-evident? One might
say that if one dig one span more in the bottom, and by doing
so he increase the vapors to be sufficient to kill, he is liable,
122 THE BABYLONIAN TALMUD.
because the vapors produced by him killed the animal; but if he
raise the walls at the top (by placing the stone), by which he did
not increase the vapors, as they were there already, one might
say that he was not liable, because the animal was not killed by
the vapors produced by him — he comes to teach us that there is
no difference.
Rabba bar bar Hana in the name of Samuel bar Martha said :
A pit eight spans deep, two of which are filled with water, there
is a liability. Why so ? Each span of water equals two of dry
ground. The schoolmen propounded a question: If the pit was
nine spans deep and only one span of them was filled with water,
what is the law — shall we say that as there is only a little water
there are no vapors in it, or shall we say that as it is nine spans
deep the vapors of the water complete it to make it ten ?
Again, if the pit was seven spans deep, three of which were filled
with water, what is the law — shall we say that as there is much
water in it there are vapors, or because it is not sufficiently deep
there are none ? This remains unanswered.
R. Shizbi questioned Rabba: ** If one dig a pit ten spans
deep and another widen it (toward one direction only), what is
the law ?" He answered: " Then he diminished the vapors! "
The former rejoined: " But he increased the possibility of being
injured ?" Rabba made no answer. Said R. Ashi: " A case
of this kind must be examined. If he fell in through the side
which was widened, then he surely increased the possibility of
falling in, and he is responsible; if, however, he fell in through
the other side, then he diminished the vapors, and he is not."
It was taught: *' A pit the depth of which is of the same
dimensions as its width, Rabba and R. Joseph, both in the
name of Rabba bar bar Hana quoting R. Mani, differ as to the
decision of those quoted : One holds that there are always
vapors (sufficient to kill) therein unless the width exceeds its
depth, and one holds that there are no vapors therein unless the
depth exceeds its width."
** If one passed by and did not cover it.'* From what time on
is he free ? (That we say that the other one was charged with
covering it, for the case undoubtedly is that the first one not
only passed by but also used the pit; because if not so, then
the first one ought to be liable as well, as it was negligence also
on his part not to cover it.) As to this the following Tanaim
differs: " One Is drawing water from a well and another comes
telling him to let him draw water, as soon as he lets him do so.
TRACT BABA KAMA (THE FIRST GATE). 123
the liability. of the first ceases. R. Eliezer b. Jacob, however,
says that the liability ceases from the moment he delivered him
the cover of the well. On what point do they differ ? R.
Eliezer b. Jacob holds that the theory of choice * applies to such
a case, and each drew water from his own part (and therefore
the second is not considered to have borrowed from the first his
share, so as to be charged with the care of the whole, and for
that reason both are liable in case of damages; but if he accepted
the cover, he thereby became charged with the care of the
whole), and the rabbis hold that the theory of choice does not
apply to such a case. R. Elazar said : One who sells his well,
title passes with the delivery of the cover. How was the case ?
If he sold it for money, let the title pass by the payment of the
money ; if by occupancy, let the title pass by this act ? The
case was by occupancy, which requires that he should expressly
tell him, " go and occupy and acquire title"; and if he deliv-
ered the cover to him, it is considered as if he told him so.
R. Jehoshua b. Levi said: One who sells his house, the title
passes with the delivery of the keys (as it is the same as the
delivery of the cover of the pit).
Resh Lakish in the name of R. Janai said: " One who sells
a flock of cattle, title passes with the delivery of the Mashkhuk-
hith (the drawing-rope). How was the case ? If he drew them
(removed them from one place to another), let title pass by this
act ? If by delivery, let title pass by doing this ? The case was
that he drew them, which requires that the vendor shall tell the
vendee expressly, " Draw them and acquire title," and as soon
as he delivered the Mashkhukhith it is considered as if he told
the vendee expressly, " Draw, and acquire title to them."
What is meant by Mashkhukhith ? It means the bell. R.
Jacob said: " It means the forerunning goat kept at the head of
the flock as leader, as a certain Galilean lectured in the presence
of R. Hisda: When the shepherd gets angry at his flock, he
blinds the leading-goat at the head of the flock (so that the
leader falls and with him all the flock)."
MISHNA VII. : If the first one covered it, but when the
second one passed by he found it uncovered and did not cover
it, the latter is liable. If the owner of a pit properly cover it,
and still an ox or an ass fall into it and is killed, there is no
liability. If however, he do not properly cover it, he is liable.
* See Erubin, pages 80-82.
124 THE BABYLONIAN TALMUD.
If an ox fall forward, face downward, into a pit by reason of the
noise caused by the digging, there is a liability; if, however, it
fall backward, there is none. If an ox or an ass with its hous-
ings fall into it and the housings be damaged, there is a liability
for the animal but not for the housings. If there fall therein
an ox, deaf, raging, or young, there is a liability (explained
further on). If a boy or a girl, a male or a female slave, fall in,
there is none.
GEMARA: Until what time is the first one free? Said
Rabh : Until he again knows of his own knowledge that the pit
is uncovered. Samuel, however, says: Until he is informed,
even if he has not seen it himself. R. Johanan says: Time
must be allowed him until he could be informed and could hire
workmen to cut wood and cover it.
'* If he cover it properly^'' etc. If he covered it properly,
how could the animal fall in ? Said R. Itz'hak bar bar Hana:
The case was, that the cover became rotten from the inside (and
could not be noticed).
The schoolmen propounded the following question: " If he
covered it sufficiently to withstand oxen but not camels, and
camels came along and made the cover shaky and then oxen fell
therein, what is the law ? Let us see. How was the case? If
camels are usual there, then certainly the act is wilful ; if they
are not, then it is only an accident ? The question is only
where camels come there at times. Shall we say that, because
camels do come there, it is considered wilful, for he should have
had it in mind, or do we say that because at that time they were
not there it might be considered an accident ?" According to
others the schoolmen did not question as to such a case; for
there is no doubt that, as long as they came at times, he should
have had it in mind, but what they did question was this: If he
covered it sufficiently to withstand oxen but not camels, and
the latter are usual there and the cover became rotten from
within, what is the law ? Do we say that because it is consid-
ered wilful as to camels it is so also as to allowing it to rot, or
that the theory of because does not apply here ? Come and hear :
** An ox that was deaf, raging, young, or blind, or an ox that
walked in the night-time, he is liable ; if, however, the ox was
sound and it was in the day-time, he is free." Now, why should
it be so ? Why not say because it is considered wilful as to an
unsound ox it is also considered so as to a sound one ? Infer
from this that the theory of because does not apply to such cases.
TRACT BABA KAMA (THE FIRST GATE). 125
'' If it fell iri forward,'' etc. Said Rabh : By" forward" is
meant that it fell on his face, and by ' * backward ' ' that it struck
the back of its head against the bottom of the pit. And both
of them have reference to the pit. [And this is in accordance
with his theory that the Scripture made one liable in case of a
pit only because of the vapors, but not because of the shock.]
Samuel, however, says: " In case of a pit there is no difference
whether it fall forward or backward, but he is liable." [For he
follows his theory as to the vapors, and so much the more
because of the shock.] But how is the case possible that when
it fall backward from the sound of the digging he shall be free ?
As, for instance, when it stumbles over the pit and falls back-
ward and strikes outside of the pit. Samuel objected to Rabh
from the following Boraitha: " As regards a pit, whether it fall
backward or forward, he is liable ?" This objection remains.
R. Hisda said: Rabh admits in case of a pit on one's own
premises that he is liable, because the owner of the ox may say,
" You are liable either way; for whether he died from the vapors
or from the shock, it was yours." Rabha, however, says: The
case in the above Boraitha, which states that he is liable if even
the ox fall backward, was that he turned over; that is, he first
fell face downward, but before he reached the ground he turned
over and fell on his back, and therefore it is the vapors that he
inhaled while falling face downward that kill him. R. Joseph
says : The Boraitha in question docs not mean to say that the
owner of the pit is liable, but, on the contrary, that the owner
of the ox is liable, and it treats of a case where the ox did dam-
age to a well, namely, by (entering a courtyard without permis-
sion, the owner of which renounced ownership neither to the
courtyard nor to the well, and) falling into the well, spoiling the
water therein contained ; in which case he is liable, no matter
which way it fell. R. Hanina taught in support of Rabh : It is
written: " And fall " — that means that the falling should be in
the usual manner, face downward. From this it was said that
if he fell face forward into a pit from the sound of the digging
there is a liability; if backward from the same cause, there is
none.
The Master said: "If he fall face downward from the sound
of the digging, there is a liability." Why so ? Was this not
caused by the one who was doing the digging ? (In this case it
is assumed that the owner has hired another person to do the
digging, and the latter is only the germon (medium), and there
126 THE BABYLONIAN TALMUD.
is no liability for being \.\iQ ger^non ?) Said R. Simi b. Ashi: It
is in accordance with R. Nathan, who said that the damage
must be paid by the owner of the place where it was done, for
the reason that the digger cannot be liable, because he is only
the germon of the damage, as we have learned in the following
Boraitha: " An ox that pushed another ox into a pit, the owner
of the ox, and not the owner of the pit, is liable. R. Nathan,
however, said that each one of them pays half (for both have
their share in it)." But have we not learned in another Bo-
raitha: " R. Nathan said: The pit-owner pays three-fourths and
the owner of the ox one-fourth " ? This presents no difficulty:
One case treats of a vicious and the other of a non-vicious ox.
But what does he hold in case of a non-vicious ox ? If he holds
that each one has done the whole damage, let each one pay
half ? And if, on the other hand, he holds that each one has
done half the damage (and therefore the owner of the ox pays
as for a non-vicious one one-fourth, which is half of the damage
he did), only three-fourths are paid and one-fourth is suffered
by the plaintiff ? Said Rabha: R. Nathan was a judge, and he
dived into the very depth of the Halakha. He holds that each
has done only half the damage ; but as to the objection raised
that the owner of the ox should pay only one-fourth, it may be
said that the owner of the killed ox may say to the owner of the
pit: " I found my ox in your pit and you killed him; therefore,
whatever I can realize from the owner of the ox who pushed
mine in I will, and the balance you will have to pay."
Rabha said: " One who places a stone on the edge of the
opening of a pit and an ox stumbles over the stone and falls into
the pit," as to this question the difference of the rabbis and
R. Nathan comes in (according to the rabbis the one who placed
the stone is liable, for he caused the fall, and he cannot be con-
sidered as the germon, for the placing of a stone in itself is con-
sidered the same as a pit ; and according to R. Nathan both are
liable, for both contributed). Is this not self-evident ? Lest
one say: In that case the pit-owner may say to the owner of the
ox, " Were it not for my pit your ox would have (instead of
pushing him in) killed him " ; but here, in this case, the one who
placed the stone may say to the pit-owner, " Were it not for
your pit, what harm would my stone have done him ? Had he
stumbled over, he would have gotten up at once ?" It there-
fore teaches that he may, however, say to him, " Were it not
for your stone, he would not have fallen into the pit."
TRACT BABA KAMA (THE FIRST GATE). 127
Rabha said: An ox and a man who together push some other
into a pit (so that the ox, the man, and the pit have all con-
tributed), as regards damages all are liable ; as regards the four
things and the value of the infant (if it should be the case), the
man is liable and the others are free; as to payment of atone-
ment money and the thirty shekels for a slave, the ox is liable
and the others are free ; as regards damage to vessels and an ox
that became desecrated and was redeemed, the man and the
owner of the ox are liable, and the owner of the pit is free.
Why is the owner of the pit free in this latter case of a redeemed
ox ? Because it is written [Ex. xxi. 36]: " And the dead shall
belong to him,** which means in a case where the dead can
belong to him, excepting this case (for although it was redeemed
the carcass cannot be sold but must be buried).
'' If an ox fall in,'" etc. Our Mishna is not in accordance
with R. Jehudah of the following Boraitha: " R. Jehudah makes
one liable for damages to vessels caused by a pit." What is the
reason for the rabbis' theory ? It is written [ibid.]: " And an
ox or an ass fall therein," which signifies an ox but not a man,
an ass but not vessels. R. Jehudah, however, holds that the
" or*' means to add also vessels. Now, according to R. Jehu-
dah, who admits that the word *' ox" means to exclude man,
what does the word " ass " mean to exclude ? Therefore said
Rabha: The necessity of stating " ass " as regards a pit accord-
ing to R. Jehudah, and ** lamb " as regards a lost thing accord-
ing to all, is really difficult to explain.
'' If an ox^ deaf'' etc. What does this mean ? Shall we
assume that the ox belongs to a deaf person, etc., but if he
belongs to a sound person there is no liability ? How is that
possible ? Said R. Johanan: It means that the ox was deaf, etc.
But if he was sound, there is no liability ? Said Rabha: " Yea,
an ox that is deaf, etc., but if he was sound there is no liability,
because a sound ox is capable of taking care of himself. The
following Boraitha is plainly in support of the above: If there
fall therein a deaf, raging, young, or blind ox, or an ox walking
in the night-time, there is a liability. If it was a sound one,
however, and in the day-time, there is no liability.
MISHNA VIII, \ There is no difference between an ox and
another animal as regards falling into a pit ; to have been kept
distant from Mount Sinai [Ex. xiii.], as to payment of double,
to restitution of lost property; as regards unloading; muzzling,
kilayim [of species], and as regards Sabbath. Neither is there
128 THE BABYLONIAN TALMUD.
any difference between the above-mentioned and a beast or bird.
If so, why does the Scripture mention " ox or ass " ? Because
the verse speaks of what is usuaL
GEMARA: Concerning falling into a pit, it reads [Ex. xxi.
34]: " In money unto the owner thereof," which signifies any
animal that has an owner. Concerning Mount Sinai, it reads
[ibid. xix. 13]: " Whether it be animal'^ or man, it shall not
live," which includes also beasts; and the word " whether" in-
cludes also birds. Concerning payment of double, it reads [ibid,
xxii. 8]: " For all manner of trespass," which signifies that
every manner of trespass (wilfulness and even as regards inani-
mate subjects). Concerning restitution of a lost thing, it reads
[Deut. xxii. 3]: " Every lost thing of thy brother's." Con-
cerning unloading, we deduce it from the analogy of expression
of " ass" used here, and in regard to Sabbath [Deut. v. 14] (as
concerning the latter, other animals are also included, so also
here). Concerning muzzling [Deut. xxv. 4], we deduce it from
the analogy of the term " ox " used here, and concerning Sab-
bath [ibid.]. Concerning kilayim, if it relates to that of plough-
ing, we deduce it from the analogy of the term " ox" in the
manner just stated; if it relates to that of coupling of animals,
it is deduced from the analogy of the word " any of thy cattle "
used here, and concerning Sabbath. And whence do we know
that it is so as to Sabbath itself ? From the following Boraitha:
R. Jose says in the name of R. Ishmael: At the first command-
ments it is written [Ex. xx. 10]: "Thy man-servant, nor thy
maid-servant, nor thy cattle"; and at the second command-
ments it is written [Deut. v. 14]: " Nor thy ox, nor thy ass, nor
any of thy cattle." Why were they expressly stated ? Are,
then, the ox and the ass not included in " cattle" ? To tell
thee that, as the terms " ox" and " ass" mentioned here in-
clude beasts and birds, to put them on the same footing, so also,
wherever these two terms are mentioned, they include beasts
and birds. But perhaps the statement in the first command-
ments should be taken as ^^«^r<3;/ and that of the last command-
ments as particular, and as there is a rule that the geiteral in-
cludes nothing but the particular, this means to say that only
ox and ass are meant, and nothing else ? Nay, it states, at the
last commandments, also *' all\ of thy cattle," and the word
* Leeser translates " beast."
\ The Talmud translates the Hebrew term literally, "all," while Leeser trans-
lates it " any."
TRACT BABA KAMA (THE FIRST GATE). 129
"all" adds all other beasts. Is it really so, that wherever
"all" is written it adds something? Is not the same word
used at tithing, and still it is construed to be a case oi general
and particular ? (See Erubim, p. 64.) We may say that " all "
is sometimes also a general, but in this particular instance it
must be explained only as to add ; for it would have been suffi-
cient to state only " and cattle," as it does in the first com-
mandments, and still it states, " and all cattle," to infer that it
plainly means to add.
Now, having come to the conclusion that Luis " all" means
to add, why was it necessary to state " cattle " in the first and
" ox " and " ass " in the last commandments ? It can be ex-
plained that these particular expressions were mentioned for the
purpose of deducing muzzling, unloading, and kilayim by the
analogy of expression stated above. If also (that as regards
kilayim it is deduced from Sabbath), let even a man be prohib-
ited from drawing a wagon together with an animal, as he is
also prohibited as regards Sabbath ? Why, then, have we
learned in the following Mishna: " A man is permitted with all
of them to plough and draw" ? Said R. Papa: One of the
inhabitants of Papanai knew the reason for that, and that was
R. A'ha bar Jacob, who explained it thus: It is written [ibid.
14] : "In order that thy man-servant and thy maid-servant may
rest as well as thou " — that means that they are compared to
them only as regards rest, but not as regards any other thing.
R. Hanina b. Egil asked R. Hyya b. Aba: Why in the first
commandments is it not written " that it may be well with
thee," and in the second commandments it is so written [Deut.
V. 16] ? He rejoined: " Instead of asking me for the reason,
you had better ask me whether it is so written at all; for I did
not notice it. You had better go to R. Tan'hum b. Hanilai,
who used to frequent R. Joshua b. Levi, who was well versed
in Agadah." He went there and got the answer from R.
Tan'hum. From R. Joshua b. Levi I heard nothing about it,
but so told me Samuel b. Na'hum the brother of R. Aha b.
Hanina's mother [according to others, the father of the same] :
The reason is because the first commandments (contained on
the tables) were destined to be broken. And if so, what of it ?
Said R. Ashi: If this had been written thereon and subsequently
(the tables) had been broken, Heaven save! "good" would
have ceased from Israel.
R. Jehushua said: One who sees the letter" Teth'' in his
9
I3C THE BABYLONIAN TALMUD.
dream, it is a good omen for him. Why so ? Because the first
time this letter is used in the Scripture is in the word " Tobh "
(good) in the verse [Gen. i. 4] : " And God saw the Hght, that
it was good (tobh)."
"And so also a beast y' etc. Said Resh Lakish: In this
Mishna Rabh teaches us that a cock and a peacock and a pheas-
ant are considered kilayim with each other. Is this not self-
evident ? Said R. Habiba : Because they are usually raised
together, one might say that they are one species. Hence this
statement.
Samuel said : The ordinary goose and the wild goose are con-
sidered kilayim. Rabha b. R. Hanan opposed. Why so ? If
because the one has a long beak and the other a short one, then
let a Persian and an Arabian camel also be kilayim, because the
one has a thick and the other a thin neck ? Therefore said
Abayi: The reason is because the one has his testicles on the
outside, while the other has them inside. R. Papa said: The
one hatches one egg at a time, while the other hatches many at
a time.
CHAPTER VI.
REGULATIONS CONCERNING THE GUARDING OF ANIMALS AGAINST
DOING DAMAGE. CONCERNING THE STARTING OF FIRE ; IF IT
PASSES OVER A WALL. FOR WHAT DISTANCES PASSED BY A
FIRE IS THE ONE WHO STARTED IT LIABLE?
MISHNA /. : If one drive his sheep into a sheep-cot and
properly bolt the gate, but still they manage to come out and
do damage, he is free. If he do not properly bolt the gate, he
is liable. If they break out in the night time, or robbers break
in the gate, and the sheep come out and cause damage, he is
free. If the robbers lead them out, they are responsible for the
damage. If one exposes his cattle to the sun, or he places
them in the custody of a deaf-mute, a fool, or a minor, and they
break away and do damage, he is liable ; if, however, he places
them with a (professional) shepherd, the latter substitutes him
(as regards liability for damages). If the cattle fall into a gar-
den and consume something, the value of the benefit they de-
rive is to be paid. If, however, they enter the garden in the
usual way, the value of the damage is paid. How is the value
of the damage to be ascertained ? It is appraised how much
a measure of the land required for planting a saah was worth
before and how much it is worth after. R. Simeon says: If
they consume ripe fruit, the value of ripe fruit is paid ; if they
consume one saah, the value of one ; if two, the value of two is
paid.
GEMARA: The rabbis taught: When is it called properly
and when not properly bolted ? If the gate is bolted so as to
withstand an ordinary wind, it is called " properly"; if not, it
is called ** improperly." Said R. Mani b. Patish: Who is the
Tana who holds that slight care is sufficient for a vicious one ?
It is R. Jehudah of the following Mishna {supra, page 104): If
his owner secured him with the rope and properly locked him
up, and still he came out and did damage, whether he was non-
vicious or he was vicious, there is a liability. Such is the dic-
tum of R. Meir. R. Jehudah, however, says: For a non-vicious
131
132 THE BABYLONIAN TALMUD.
there is, but for a vicious one there is no liability; as it is writ-
ten [Ex. xxi. 36] : " And his owner had 7iot kept him in," but
here he had. R. Elazar, however, said: "There is no other
care for a vicious one than the knife." It can be said that the
Mishna is in accordance with R. Meir also, but the tooth and
foot are different, for the Scripture required only slight care
with them, as R. Elazar, and according to others a Boraitha
taught: " There are four things regarding which the Scripture
diminished the amount of care, and they are the pit, the fire,
the tooth, and the foot: The pit, as it is written [ibid., ibid.
33] : ** And if a man open a pit, or if a man dig a pit, and do
not cover it"; but if he had only covered it (without placing
a layer of earth on it), it is sufficient. Fire, as it is written
[ibid. xxii. 5]: "He that kindled the fire shall surely make
restitution," which signifies that it must be done purposely.
The tooth and foot, as it is written [ibid., ibid. 4]: " And he
let his beasts enter, and they fed in another man's field," which
signifies an intentional act, but not otherwise. Said Rabba:
From our Mishna it is also to be inferred (that the reason is
because the Scripture diminished the amount of care), for it
states sheep instead of ox (although sheep require less care), of
which it treats throughout. We must say, then, that this is
because the Law requires only slight care, and therefore the
Mishna mentioned only sheep, which usually do damage only
with the tooth and foot, and not with the horn, and also for the
reason that the tooth and foot are considered vicious from the
beginning, which is not the case with the horn. Infer from all
this that slight care only is required.
We have learned in a Boraitha: " R. Jehoshua said: There
are four things (for which) one who does them cannot be held
responsible before an earthly tribunal, although he will be pun-
ished for them by the Divine court, and they are: he who breaks
the fence of the stall where his neighbor's cattle are kept (only
when the fence was shaky); he who bends his neighbor's grow-
ing crop in the direction of fire (only during the prevalence of
an unusual wind); he who hires a false witness (only for the
benefit of his neighbor); and he who suppresses his own testi-
mony and thereby deprives his neighbor from its benefit (only if
he was the sole witness). But if the circumstances are different,
he is liable also to an earthly tribunal.
R. Ashi said: The case of bending one's crop in the direc-
tion of the fire may be explained that he spread blankets over
TRACT BABA KAMA (THE FIRST GATE). 133
the crop, and thereby made it "hidden articles," for which
there is no liability for the one who starts the fire (as explained
elsewhere).
But are there not other cases in which one is liable only to
heavenly justice ? Yea, there are, but those just stated had to
be enumerated here, for one might say that in these cases there
should be no liability even to the Divine court. Thus, in the
first case, because it had to be abolished anyhow ; in the sec-
ond, because by an unusual wind it would have caught fire with-
out that and (according to R. Ashi it is also necessary to mention
this case, lest one say he may argue that he spread the blankets
over it in order to protect it against the fire) ; in the third, be-
cause the witness had not to listen to the one who hired him,
as it was prohibited by the Law ; and in the last case, because
who could guarantee that if he should not have testified the
other would have admitted his liability ? And lest one say that
in such cases there is no liability, even to the Divine court,
hence the statement.
*' If he expose them to the suUy*' etc. Said Rabba: And this
is so even if they undermined (the fence and did damage); lest
one say that in such a case the damage was done through acci-
dent, he comes to teach us that even this is considered wilful.
Why so ? Because the plaintiff may say to the defendant : Did
you not know that when exposing them to the sun they would
do all they could to break out ?
" If the robbers lead them out,'' etc. Is this not self-evident,
for by this act they place them under their own control as re-
gards everything ? The case was that they only stood before
them on each side (so as to leave only the way leading to the
standing crop open). And this is in accordance with Rabba,
who said in the name of R. Mathua, quoting Rabh : One who
leads another one's animal to, and places it in, one's barn (and
it does damage), is liable. " Places ? " Is this not self-evident ?
We must say, then, that it means that he stood before them (as
explained above). Said Abayi to R. Joseph : You explained to
us the above saying of Rabh, that the case was that he struck
it (driving it on), so also was the case here with the robbers,
that they did not lead them out, but only struck them with a
cane (and this action is considered equivalent to leading them
out with the hand).
*' If he deliver them to a shepherd,'' etc. From the fact that
it states that he delivered them to a shepherd, and it does not
134 THE BABYLONIAN TALMUD.
state that ** he delivered them to another," it is to be inferred
that the shepherd in turn delivered them to his assistant, for
such is the custom of a shepherd ; but if he delivered them to
a layman the shepherd is not liable. Shall we assume that this
will be a support to Rabha, who said elsewhere: " A bailee who
intrusts his bailment to another bailee is liable?" Nay, per-
haps the statement here is because it is customary so to do, but
such is the law, even if it was delivered to a layman.
It was taught : A bailee of a lost article, Rabba says that he
is considered a gratuitous bailee for he derives no benefit from
such bailment ; R. Joseph, however, says that because the Scrip-
ture imposed this duty upon him, against his will, he is consid-
ered a bailee for hire.
R. Joseph objected to Rabba from the following Boraitha:
If he returned the lost article in a place where its owner were
likely to see it, he is absolved from any obligation to further
trouble himself with it ; and if it was stolen or lost, he is re-
sponsible. Does this not mean if it was stolen or lost while
under his control (and still he is liable ; hence he is considered
a bailee for hire) ? Nay, it means from the place to which he
returned it. But does it not state that he need not trouble with
it any more ? He answered him : The case was that he returned
it in the noon-time, and it teaches two cases, thus: If he re-
turned it in the morning, when it could be noticed by its owner,
who usually passes by that place, he need no more trouble him-
self with it ; if, however, he did so in the noon-time, when the
owner does not usually pass by, and it was stolen or lost, he is
responsible. He again objected from the following: " He is
always liable until he return it to the control of the owner."
Does that not mean if even he placed it in his house, hence we
see that he is considered a bailee for hire ? He answered him :
I admit that in case of animated beings more care is required,
for they are used to walk away.
Rabba then objected to R. Joseph's statement from a Bo-
raitha which teaches: It is written [Deut. xxii. i] : " Bring them
back." " Bring them " means to the owner's house; " back"
means to his garden or to the owner's ruined (vacant) house.
We must say, then, that in the last two places the returned
property is not guarded ; because if it is, then what difference is
there between these two places and the house ? Now then, if
he is considered a bailee for hire,, why is he not liable for it at
the last two places? And R. Joseph answered: The Boraitha
TRACT BABA KAMA (THE FIRST GATE). 135
speaks of a case where the property was guarded, and the differ-
ence between those places and the house is that in the former
case the owner is not notified, and it comes to teach us that the
knowledge of the owner is not required, as R. Elazar states in
Baba Metzia, p. 31^.
Said Abayi to R. Joseph: Do you yourself not admit that
he is considered a gratuitous bailee ? Did not R. Hyya b. Aba
say in the name of R. Johanan that, regarding found property,
if the finder claims that it was stolen from him (and it was found
out that it was not so), he pays double (as it is written [Ex.
xxii. 7, 8] : "If the thief be not found . . . or for any man-
ner of lost thing"); and if he would be considered a bailee for
hire, why should he pay double (by his own claim he admits
th^t he has to pay the value of the bailment) ? He answered:
The case was that he claimed to have been robbed by armed
robbers (i.e., an accident, in which case he is free). He objected
again : If so, then it is robbery, and not theft ? R. Joseph re-
joined : I say that even armed robbery, when committed not
publicly, is still considered theft, and he must pay, according to
Scripture, double. Abayi objected again: (It was stated else-
where in regard to the comparison between a gratuitous bailee
and a bailee for hire, as follows:) " Nay, a gratuitous bailee pays
double and a bailee for hire does not." Now, if armed robbers
pay also double, like ordinary thieves, there can also be a case
of a bailee for hire who should pay double, as, for instance,
when he claims that he was robbed by armed robbers (and it
was found out to be not so) ? He rejoined : It means thus : Nay,
there can be no comparison between a gratuitous bailee who
pays double, whatever his claim may be, and a bailee for hire
who pays double only when he claims to have been robbed by
armed robbers. He still objected from the following Boraitha:
It is written [Ex. xxii. 9] : " And it die, or be hurt " ; from this
we know only as to death or hurt. Wherefrom do we know
also as to theft or loss ? This is to be drawn by an a fortiori
conclusion, thus: A bailee for hire who is not liable for death
or hurt is still liable for theft or loss, a borrower who is liable
for death or hurt ought so much the more to be liable for theft
or loss. Kxid. \}[s\s> a fortiori conclusion is irrefutable. Now, if
armed robbers are considered ordinary thieves, why is it irrefut-
able— can it then not be refuted thus: There is an exception
with a bailee for hire who pays double when he claims that he
was robbed by armed robbers ? He rejoined : The Tana of this
136 THE BABYLONIAN TALMUD.
Boraitha holds that even to pay only the actual value without
an oath is better than to pay double under oath (and therefore
the <z/(?r/^r/ conclusion cannot be refuted). (The explanation
of this statement will be found in Baba Metzia, where this case
is treated at length.)
" If it fall into a garden^'" etc. Said Rabh: The case was
that it struck upon the growing crop, and the benefit derived for
which payment must be made is that it was prevented from
striking hard upon the ground. But how is the case if it con-
sumed some plants, does it not pay ? Shall we say that Rabh
is in accordance with his theory (above, page 109) " that the
animal ought not to have eaten " ? What comparison is this ?
When did Rabh say this ? Only when the animal was injured
by the fruit which it consumed and the owner of the animal
claims payment for such injuries, in such a case the owner of
the fruit can say that the animal ought not to have eaten ; but
when the animal did injury to the owner of the fruit by consum-
ing it, did Rabh then say that it must not be paid ? But what,
then, did Rabh mean by his statement above ? Rabh means to
state a case of " not only *' ; viz., Not only that he pays where
it consumed, but even when it fell on the crop and consumed
nothing it must pay, for the benefit it derived in being prevented
from striking hard upon the ground, and lest the owner of the
animal say that this was only his duty, similar to frightening
away a lion from his neighbor's field, for which the Law awards
no compensation, it comes to teach us that payment must be
made for the benefit. But why is this really not to be com-
pared to frightening away a lion from one's neighbor's field ?
Because in such cases one does not incur any expense, but here
he has actual loss.
In what manner did it fall ? R. Kahana said that it slipped
out by reason of the urine it let. Rabha, however, said that it
was pushed in by another animal. According to the latter, so
much the more if it happened by reason of her own urine; but
according to the former, only in such a case ; but when pushed
in by another animal it is considered wilful, and the value of the
damage is paid, for he (the owner of the field) can say to the
owner of the animal: "You should have seen to it that the
animals could have passed one by one, without being pushed
in." Said R. Kahana: The case is only if it damaged one
plant-bed (that it pays the benefit that it derived); but if it
went from one plant-bed to another, consuming the plants, it
TRACT BABA KAMA (THE FIRST GATE). 137
pays the full value. R. Johanan, however, says that even in
such a case, and even if it continued doing so the whole day,
only the value of the benefit derived is paid (because when once
it was already there it could not keep away from consuming),
until the owner has noticed that the animal left the field and
then returned again. Said R. Papa: It must not be said that
the owner of the animal must have notice of both the leaving
and the returning, it is sufficient if he only had notice of the
leaving and did not care to keep it from returning, because the
owner of the field may say to the owner of the animal: " You
should have known that, so long as it knew the way, it would
go there at the earliest opportunity, and you should have taken
care of it. "
' * How does it pay what it damaged, ' * etc. Whence is this
deduced ? Said R. Mathua: It is written [Ex. xxii. 4]: " And
they feed in another man's field" — this teaches us that the
appraisement is made with the other field (which was not dam-
aged). But is this passage not necessary, to exclude public
ground ? If so, then the Scripture ought to read, " and they
feed another man's field." Why in another man's field ?
Hence to infer both.
How is the appraisement made ? Said R. Jose b. Hanina:
One saah in sixty {i.e., the Mishna means not only sixty times
the portion damaged, but thus: To the measure of land suffi-
cient for planting a saah of grain, on which the damage was
done, are added fifty-nine measures of such dimensions, and
appraisement is then made as to the value of such a lot of land
if sold as one lot of land; then the value of a measure sufficient
for the planting of one saah is apportioned, and then is ascer-
tained the difference in price of such saah on account of such
damage. The reason is, that no undue advantage should be
taken of the defendant; for a small plot of land is compara-
tively higher in price than a plot of sixty times its size, because
a poor man can also afford to buy it and there are more pur-
chasers). R. Janai, however, says: One Tirkav in sixty (thirty
saah, and not sixty saah, in order not to take undue advantage
of the plaintiff, as for plots of sixty saah buyers are not so
numerous, because for a man of moderate means it is too much
and for a rich man it is too small a plot). But Hezkiah says:
The appraisement is made only by one in sixty times the quan-
tity damaged. An objection was raised from the following:
" If she consumed a kabh or two, one must not say that their
138 THE BABYLONIAN TALMUD.
value must be paid, but it is assumed as if it were a small plant-
bed and is thus appraised." Is it not to be presumed that this
plant-bed is appraised separately and for itself ? Nay, it means
in sixty times its size.
The rabbis taught: *' The appraisement is not one kabh in
sixty kabh, for it increases its value ; neither one kur in sixty
kurs, for it unreasonably reduces its value." What does this
mean ? Said R. Huna b. Menoa'h in the name of R. Aha the
son of R. Ika, it means thus: A measure of a kabh is not ap-
praised separately, for the plaintiff may unduly benefit by it ;
nor a kabh as relative to a kur, for the plaintiff may unduly be
injured by it (for the damage may not be so well noticed), but
every unit is appraised at sixty times its value (for the reason
stated above).
It happened that one came before the Exilarch and com-
plained of one who destroyed one of his trees. Said the Exil-
arch to the defendant: " I know of my own knowledge that the
tree was one of a group of three trees which was worth one
hundred zuz. You will therefore pay him one-third of this
amount." The complainant refused to accept this decision,
saying : Before the Exilarch, who applies the Persian law, what
have I to do ? and he went before R. Na'hman, who assessed
the damage by appraising the destroyed tree as relative to a
group of sixty trees. Said Rabha to him: The rule of sixty
was held when damage was done by ono* s property (without the
intention of its owner), and you wish to apply the same rule to
this case, where the person himself has done the damage inten-
tionally ? Said Abayi to Rabha: Why do you think that in
case of damage done by one's own person this rule should not
apply, because " sixty" is not mentioned in the following Bo-
raitha: " One who destroys the young grapes of his neighbor's
vineyard, the damage is assessed by appraising the value of the
vineyard before and after the destruction " ? But have we not
learned in another Boraitha, similar to this as regards damage
by one's property, viz. : If the animal destroyed a bough, R.
Jose said, the assessors of fines in Jerusalem say that a bough
one year old is worth two silver dinars ; two years old — four. If
it consumed hay, R. Jose the Galilean says that the damage is
assessed by appraising the value of what remained. The sages,
however, hold that the value of the land before and after the
consumption of the hay is appraised (and the difference in value
is the damage). If it consumed grapes in the budding stage,
TRACT BABA KAMA (THE FIRST GATE). 139
R. Jehoshua says that they are considered as if ready to be
plucked, the rabbis, however, apply the former rule. R. Simeon
b. Jehudah says in the name of R. Simeon : This was said only
when the grapes or figs were still in sprouts ; but if they were
already developed to the size of a white bean, they are consid-
ered as ready to be plucked ? Now then, as to the sages,
although they do not mention the rule of sixty, still we know
from elsewhere that such is their theory, and therefore it does
not state it here expressly. Interpret the above Boraitha in
the same manner. The Master said: R. Simeon b. Jehudah
said, etc. This was said only when the grapes and figs were
still in sprouts, from which it is to be inferred that if they were
in the budding stage they are considered as ready to be plucked.
How should the latter part be explained: " If it consumed figs
or grapes when already of the size of a white bean, they are
considered as ready to be plucked" — from which it is to be
inferred that if in the budding stage it is appraised as to how
much it was worth before and how much after ? Said Rabhina:
Add, and teach together thus: " This is in a case where it con-
sumed grapes and figs in the sprouting stage ; but if in the bud-
ding stage or when they were already of the size of a white
bean, they are considered as ready to be plucked." If this is
so, is it not the same as what R. Jehoshua said ? The differ-
ence is as to the deduction from the amount of damage of the
value of the increased sap (of the tree by reason of the de-
stroyed fruit, which benefits the remaining fruit). But it is not
known who is the one who holds him liable. Abayi, however,
says : It is very well known, because the Tana who takes into
consideration the increase of sap is R. Simeon b. Jehudah, who
holds something similar in Khethuboth, p. 39^.
R. Papa and R. Huna the son of R. Jehoshua used to ap-
praise the tree together with a small portion of the ground on
which it was growing. The Halakha, however, prevails in
accordance with R. Papa and R. Huna the son of R. Jehoshua
as regards Aramean trees and in accordance with the Exilarch
as regards Persian trees (because they are expensive).
Eliezer the Little once put on black shoes and stood in the
market-place of Nahardea. When the officers of the Exilarch
asked him for the reason, he answered that it was because he
was lamenting the fall of Jerusalem.
They said to him: "Are you such a great man as to be
worthy of lamenting the fall of Jerusalem?" And thinking
I40 THE BABYLONIAN TALMUD.
that he was doing that in search of notoriety, they placed him
under arrest. He, however, protested and said: " I am a great
man." When asked to prove it, he said: " Either you ask me
some difficult question, or I will ask one of you." They said
to him: " You ask the question." He asked thus: " One who
destroys a young date-tree (on which the dates are not yet ripe),
what amount of damages must he pay?" They answered:
'* He pays the value of the tree." " But there are already
dates on it?" They rejoined: "Then let him also pay the
^alue of the dates." " But did he, then, take the dates with
him; he only destroyed the tree ? " he argued. " Well, let us
then hear what you have to say to that." He answered : ** The
damage is appraised as to one in sixty. ' ' They said to him : * * But
who agrees with you in that ?" He answered: " Samuel is still
alive and his college is in full bloom." When they inquired of
Samuel and verified that he agreed with him, they liberated him.
* * R, Simeon says : If it consumed ripe fruit, ' * etc. Why so ?
Was it not said above that [Ex. xxii. 4] " And they feed in
another man's field" teaches that it should be appraised to-
gether with the ground ? This is so only when the ground is
needed, but in this case {ripe fruit), where they no longer need
the ground, it must be appraised 'separately and paid in full.
Said R. Huna b. Hyya in the name of R. Jeremiah b. Aba:
There was a case, and Rabh acted in accordance with R. Meir;
but in his lectures, however, he declared that the Halakha pre-
vails in accordance with R. Simeon b. Gamaliel. He acted in
accordance with R. Meir of the following Boraitha: If he (the
husband) transferred some of his estates to one, and his wife did
not sign the release of her dower (the amount stated in her
marriage contract), and then he transferred other estates to
another and she did sign, she lost her dower. Such is the
dictum of R. Meir. (And she cannot say: I did this favor to
my husband and signed the release as to the second estates
because I lose nothing thereby, as I take my dower in the first
estates, from which I have not released my right.) And he
lectured that the Halakha prevails in accordance with R. Simeon
b. Gamaliel of our Mishna, that if the fruit was ripe it must
be appraised separately.*
* No commentary explains for what purpose this statement is made here and
what the marriage contract has to do with the appraisement of fruit, or why R. Huna
finds it necessary to declare that there is a contradiction in Rabh's decision between
his action in practice and the above lecture. It seems to us that this is to be explained
TRACT BABA KAMA (THE FIRST GATE). 141
MISHNA //. : One who puts up a stack of grain on an-
other's land without permission, and the land-owner's animal
consumed some of the grain, he is free. If the animal was in-
jured thereby, the one who put up the stack is liable. If, how-
ever, it was done with permission, the land-owner is liable.
GEMARA: Said R. Papa: It treats here of a case where
there was a watchman who told him, " Go and put up your
stack," which is construed to mean, " Go, put up your stack,
and I will take care of it."
MISHNA ///. : One who started a fire through the medium
of a deaf-mute, idiot, or minor, he is free from responsibility to
an earthly tribunal, but he is liable to the Divine court. If,
however, he started the fire through the medium of a sound
person, the latter is liable. If one brought fire and the other
wood, he that brought the wood is liable. But if the wood was
brought first by one, and subsequently another brought the fire,
he who brought the fire is liable. If one came and blew at the
fire and kindled it, the one who did so is liable. If, however, it
was kindled by the wind, all are free.
GEMARA: Said Resh Lakish in the name of Hezkiah: He
is not liable to earthly tribunals only if he delivered to the per-
sons mentioned in the Mishna a burning coal and they blew at
it ; but if he handed them a flame, he who handed it to them is
liable. Why so ? Because it is his own act that caused the
fire. R. Johanan, however, says that even in such a case he is
free. Why so ? Because it was the deaf-mute's tongs (medium)
that caused it. And the court cannot hold him liable unless he
handed them both fire and fuel, for in such a case surely his
intention was to cause it.
* * If the wind kindled it^ all are free. ' ' The rabbis taught :
" If he was blowing at the fire and so also was at the same time
the wind — if his blowing, independently of the wind, was suffi-
cient to kindle the fire he is liable ; if not, he is free. Why so
— let it be as if he was winnowing and the wind helped him, in
thus : The opposition to R. Simeon b. Gamaliel in our Mishna is anonymous, and
there is a rule that the author of all the anonymous Mishnas is R. Meir ; and R.
Meir's decree regarding the marriage contract agrees with the decision in our Mishna,
as his theory as regards the marriage contract is that, although the two estates are
separate, still they are considered one, because they belong to one owner ; and
according to this theory, although the fruit is ripe and no more needs the ground,
it can nevertheless not be appraised separate from the ground, because they belong
to one owner, and the verse quoted applies. Hence the contradiction. The state-
ment of R. Huna is the only one of its kind in the whole Talmud.
142 THE BABYLONIAN TALMUD.
which case he is liable ? Said R. Ashi : This was said only as
regards Sabbath, where the Scripture requires intentional work
(and of course he is satisfied with the help afforded him by the
wind and thus it is intentional); but here he is the mere cause
{germon)y and there is no liability as regards damages for being
a mere germon.
MISHNA IV. : If one start a fire and it consume wood,
stones, or earth, he is liable; for it is written [Ex. xxii. 5]: ** If
a fire break out, and meet with thorns, so that stacks of corn,
or the standing corn of the field, be consumed thereby, he that
kindled the fire shall surely make restitution.'*
GEMARA: Said Rabha: All those various things were nec-
essary to be enumerated in the Scripture, for one could not be
deduced from the other by comparison. Thus, if it mentioned
thorns only, it could be assumed that only in such a case there
is a liability, because they are destined to be burnt and one does
not take proper care, and therefore it is considered gross negli-
gence ; but in case of stacks, which are not so and usually one
takes proper care of them, it would be considered an accident,
for which there is no liability; again, if it mentioned stacks
only, it could be assumed that there is a liability, because the
damage is great ; but in case of thorns, where the damage is
little, one might say that there is no liability. But for what
purpose is "standing corn" mentioned? To teach that as
standing corn is exposed to view, so everything is exposed to
view (to exclude that which was concealed from view). [But
according to R. Jehudah, who holds that there is a liability also
for such things, what does the case just mentioned teach ? It
comes to include all that is in a standing position, as trees and
animals.] *' Field '* — to include the case where the fire singed
the surface of fallow ground or of stones. But let the Scripture
mention only '* field," and it would include all the others ? If
so, one might say that it applies only to the products of the field
(but not to the ground itself), hence it teaches us that (by stat-
ing "standing corn" expressly and "field," to include the
ground itself).
R. Simeon b. Na'hmani said in the name of R. Johanan: No
chastisement comes upon the world unless there are wicked
ones in existence, as it is written [ibid., ibid.]: " If a fire break
out and meet with thorns." When does a fire break out — when
there are thorns prepared for it ? Its first victims, however, are
the upright, as it is written [ibid., ibid.]: " So that stacks of
TRACT BABA KAMA (THE FIRST GATE). 143
corn be consumed" — not it shall consume, to signify that the
stacks of corn (the upright) are consumed first,
R. Joseph taught: It is written [Ex. xii. 22]: "And none
of you shall go out from the door of his house until the morn-
ing ? " Infer from this that as soon as permission is given to
the executioner he makes no distinction between upright and
wicked; and furthermore, he picks out his first victims from
among the upright, as it is written [Ezek. xxi. 8] : " And I will
cut off from thee the righteous and the wicked." R. Joseph
cried, saying: If they are liable to so much misfortune, what
good is there in being upright ? Said Abayi : It is of great
good to them, as it is written [Isa. Ivii. i]: " Before the evil the
righteous is taken away" {i.e., that he shall not see the evil
that will come in the future).
The rabbis taught : When pestilence is raging in town, stay
in-doors, as it is written [Ex. xii. 22]: " And none of you shall
go out from the door of his house until the morning " ; and it is
also written [Isa. xxvi. 20]: " Go, my people, enter thou into
thy chambers, and shut thy door behind thee " ; and again it is
written [Deut. xxxii. 25]: " Without shall the sword destroy,
and terror within the chambers." Why the citation of the two
additional passages ? Lest one say that it is so only as to night-
time but not as to day-time, hence the passage in Isaiah, which
means at any time; and lest one say that this is so only where
there is no terror within the house, but when there is it could
be assumed that it were more advisable to go out and associate
with others, hence the last-quoted verse in Deuteronomy, to
teach that although within the house terror reigns, yet without
it is still worse, as " without the sword shall destroy." Rabha
in times of fury used to keep the windows shut, for it is written
[Jer. ix. 20] : " For death is come up through our windows^
The rabbis taught: If there is a famine in town, do not
spare your feet and leave town, as it is written [Gen. xii. 10] :
" And there arose a famine in the land: and Abram went down
into Egypt to sojourn there." And it is also written [II Kings,
vii. 4]: ** If we say, We will enter into the city, then is the
famine in the city; and we shall die there." For what purpose
is the quotation of the additional passage ? Lest one say that
it is so only where there is no risk of life, but where there is it
is not so, hence the quotation, which is followed by [ibid., ibid.] :
" If they let us live, we shall live; and if they kill us, we shall
but die,"
144 THE BABYLONIAN TALMUD.
The rabbis taught again : ' ' When there is a pestilence in
town, a person shall not walk in the middle of the road; for so
long as the Angel of Death has received his permission to rage,
he does so high-handed. On the contrary, when peace reigns,
one must not walk on the sideways ; for so long as he has not
the permission, he hides himself away."
R. Ami and R. Assi were sitting before R. Itz'hak Nap'ha.
One was asking him to say some Halakha, and the other to say
some Agadah. When he began to say a Halakha he was inter-
rupted by one, and when an Agadah he was interrupted by the
other. He then said: I will tell you a parable: It is like unto
a man who has two wives — an old one and a young one. The
young one picks his gray hair and the old one his black hair.
The result is that he becomes bald-headed. I will tell you,
however, now something which will be to the satisfaction of
both of you: {Agadah) — It is written [Ex. xxii. 5]: " If a fire
break out and meet with thorns" — that means, if it should
break out of itself — " he that kindled the fire shall surely make
restitution." Said the Holy One, blessed be He, " I shall surely
make restitution for the fire I kindled in Zion," as it is written
[Lam. iv. 11]: " He kindled a fire in Zion, which had devoured
her foundations " ; and, " I shall also build it up again by fire,"
as it is written [Zech. ii. 9] : " But I — I will be unto her . . .
a wall of fire round about, and for glory will I be in the midst of
her." {Halakha) — Why does the verse begin with the damage
by one's property (if a fire break out) and end with damages
done by one's person {he that kindled the fire) ? To teach thee
that one is liable for his fire on the same principle as liability for
one's arrow.
MISHNA V. : If the fire passed over a fence four ells high,
or through a public highway or a river, there is no liability.
GEMARA: But have we not learned in a Boraitha, as re-
gards a fence of such height, that there is a liability ? Said R.
Papa: The Tana of our Mishna counts regressively, viz.: For
six, five, and down to (and including) four ells there is no liabil-
ity; while the Tana of the Boraitha counts progressively, viz.:
For two, three, up to (but not including) four, there is a liability.
(Hence for four ells, according to both, there is no liability.)
Said Rabha: The rule that for four ells there is no liability ap-
plies also to a field filled with thorns (which makes it very in-
flammable). Said R. Papa: The four ells begin to count from
the edge of the thor:,s upwards.
TRACT BABA KAMA (THE FIRST GATE). 145
Rabh said: Our Mishna treats of a case where the fire was
rising upwards, but if it was creeping (and consuming whatever
was in its way, and therefore if it even crossed a public highway,
there is a liability) there is a liability even up to a hundred ells.
Samuel, however, says the reverse: Our Mishna treats where
the fire was creeping; but if it was rising upwards, any dimen-
sions are sufficient to relieve from liability. The following Bo-
raitha is in support of Rabh: This (that if it crossed a public
highway there is no liability) was said only if the fire was rising;
but if it was creeping and fuel was within reach, even a hundred
miles, there is a liability. If it crossed a river or a pool eigh-
teen ells wide, there is no liability.
' ' A public highway. ' ' Who is the Tana who holds so ? Said
Rabha : It is R. Eliezer, who says in the following Boraitha : If
it was sixteen ells, as wide as a public highway, there is no
liability.
** Or a river." Rabh said: It means a full-sized river.
Samuel, however, said: It means a lake (from which the neigh-
boring fields are irrigated). According to Rabh, it is so even if
the river dried up (for so that it be wide enough, it is considered
as a public highway), but according to Samuel there must be
water in the lake.
MISHNA VI. : If one start a fire on his own premises, how
far must the fire pass (in order to subject him to liability) ? R.
Eliezer b. Azariah said : It is looked upon as if it were in the
centre of a space of land sufficient for planting a kur of grain
(and if it pass out of such distance, he is liable). R. Eliezer
says: Over sixteen ells, as wide as a public highway. R. Aqiba
says: Over fifty ells. R. Simeon, however, says: It is written
[Ex. xxii. 5] : " He that kindled the fire shall surely make resti-
tution " — that means that he must make restitution for all that
was burnt through the fire he started.
GEMARA: Does, then, R. Simeon not hold of distances in
regard to fire ? (i.e., that a fire must not be built unless it is a
certain distance from other objects). Have we not learned in the
following Mishna (Baba Bathra, Ch. II., M. 2) : R. Simeon says :
These distances were said only for the purpose that if they were
observed, and still damage was done, there is no liability (hence
we see that he holds of distances ?). Said R. Na'hman in the
name of Rabba b. Abuah : R. Simeon's statement in the Mishna,
that one must pay for what was burnt through his fire means
that the fire was made by the one who started it of such height
10
146 THE BABYLONIAN TALMUD.
that it could pass the different distances stated, respectively.
R. Joseph in the name of R. Jehudah, quoting Samuel, said:
The Halakha prevails in accordance with R. Simeon, and so
also said R. Na'hman in the name of the same authority.
MISHNA VII. : If one cause his neighbor's stack of grain
to burn down, and there be vessels therein which also are burnt,
R. Jehudah says that he must pay also for the vessels. The
rabbis, however, hold that he pays only for a stack of wheat or
barley, as the case may be, of such dimensions. If a bound kid
were therein and a slave was standing near by and both were
burnt, he must pay for the kid (but not for the slave, as he
should have escaped); if, however, a bound slave were therein
and a kid was standing near by and both were burnt, he is free
(from damages, because he is guilty of murder). And the sages
concede to R. Jehudah that, if one set fire to another's house
(or palace), he pays for all that was therein contained, for it is
customary with people to keep their property in the house.
GEMARA: R. Kahana said: The rabbis and R. Jehudah
differ only in case he started the fire on his own and it com-
municated to another's premises, in which case R. Jehudah
holds one liable for the damage done by fire to concealed arti-
cles, and the rabbis do not, but if he started the fire on another's
premises, they all agree that he pays for all that was contained
therein. Said Rabha to him: If so, why does the Mishna state
further on that ** the rabbis concede," etc. — let it distinguish
in that very statement, and say that the case is so only if he
started the fire on his own premises, but if on another's they all
agree that he must pay for all that was contained therein ?
Therefore said Rabha: They differ in both; viz., if he started
the fire on his own premises and it communicated to another's.
R. Jehudah holds him liable for concealed articles and the rabbis
hold him free ; and also in the other case, R. Jehudah holds that
he must pay for all that was concealed therein, even if it were
apraxi? (a belt made with pockets to place money therein).
The rabbis, however, hold that he is liable only for such articles
as are usually kept there, as a threshing-board or an ox-bow,
but not for such articles as it is not customary to keep there.
The rabbis taught: If one cause a stack of grain belonging
to another to burn down, and there be vessels therein which also
are burnt, R. Jehudah says that he pays for all that was con-
tained therein. The rabbis, however, hold that he pays only
for a stack of wheat or barley, and the vessels are considered as
TRACT BABA KAMA (THE FIRST GATE). 147
if their space was occupied with grain. This is so only when he
started the fire on his own premises and it communicated to
another's; but if he started it originally on another's premises,
he pays for all that was therein. And R. Jehudah concedes to
the rabbis that, if one permit his neighbor to place a stack of
grain on his premises and the other did so and concealed some
articles therein (and the owner of the premises cause a fire to
burn them) he pays only for the grain; if he permitted him
a stack of wheat and he placed there a stack of barley, or vice
versUy or of wheat and he covered it with barley, or of barley
and he covered it with wheat, that he pays only the value of
barley.
Rabha said: If one give a golden dinar to a woman and say
to her: ** Take care of it, for it is a silver dinar," and she dam-
age it, she pays for a golden dinar; for he may say to her:
" What right had you to damage it ? " If, however, it was lost
because of her negligence, she pays only for a silver dinar; for
she can say to him: " I obliged myself to take care of a silver
dinar only, but not of a golden one." Said R. Mordecai to
R. Ashi: Ye learned this in the name of Rabha, while we de-
rived it from the above Boraitha, which states that, if one
allowed him to place a stack of wheat and he covered it with
barley, or vice versa, he pays only the value of barley; hence
we see that he may say to him that he obliged himself to take
care of barley only. So also here. She may say, " I obliged
myself to take care of a silver dinar, but not of a golden dinar."
Rabh said : I heard something in regard to R. Jehudah of our
Mishna, and I cannot recollect what it was. Said Samuel : Does
(Aba) not recollect what was said in regard to R. Jehudah 's the-
ory that one is liable for concealed articles ? That he must
make oath as to the value, as enacted in case of a bailee who
claims that he was robbed.
It happened that one kicked the money-pouch of his neigh-
bor into the river. The owner came and claimed that such and
such articles were therein. When it came before R. Ashi, he
was deliberating as to what was the law in such cases. Said
Rabhina to R. A'ha the son of Rabha, according to others R.
A'ha the son of Rabha to R. Ashi : Is this not stated in our
Mishna: " And t'^ne sages concede to R. Jehudah that if one,"
etc., "because it is customary with people," etc.? He an-
swered : If he had claimed that he had money therein it would
be so, but here he claims that he had therein pearls; and the
148 THE BABYLOiNIAN TALMUD.
question is, is it customary with people to keep pearls in a
money-pouch ? This remains unanswered.
Said R. Jemar to R. Ashi: If one claimed that he kept a
silver cup in his house, what is the law ? He answered : It must
be investigated whether he is a man of such standing that he has
silver cups, or whether he is a person whom others trust and
deposit with him such article. Then he makes oath, and he is
paid ; if not, he is not believed, and no oath is given him.
R. Ada the son of R. Avia questioned R. Ashi : What dif-
ference is there between a robber and one who uses violence ?
He answered : He who uses violence pays the value (to the
owner who gives up the articles under duress) while a robber
does not. He rejoined: If he pays the value, why is it called
violence — has not R. Huna said: If even one were threatened
with hanging in order to compel him to sell his property, the
sale is valid ? This presents no difificulty. R. Huna said so
only when he finally consented, and said plainly, " I am willing
to sell it"; but if he never voluntarily consented it is consid-
ered violence, even if the value of the article was received by
him.
MISHNA VIII. : If a spark escape from under the black-
smith's hammer and do damage, there is a liability. A camel
that was walking on a public highway laden with flax, and
the flax pressed into a store and caught fire from the store-
keeper's lit candle and set fire to the house, the driver of the
camel is liable. If, however, the candle was placed outside the
store, the store-keeper is liable. R. Jehudah says: If it was a
Hanuka lamp, there is no liability.
GEMARA: Said Rabhina in the name of Rabha: From the
statement of R. Jehudah it is to be inferred that there is a merit
in placing the Hanuka lamp within ten spans (above the ground) ;
for if it should be assumed to be above ten, why should R.
Jehudah say that there is no liability — let him say that the
store-keeper should have placed it above the camel and its
rider ? Hence as stated : Nay, it may be said that it might be
placed even above them ; but as an answer to the claim that he
should have placed it above the camel and its rider, he may say
that when one is occupied in the performance of a merit the
rabbis do not put him to so much trouble.
CHAPTER VII.
RULES AND REGULATIONS CONCERNING THE PAYMENT OF DOUBLE,
AND FOUR AND FIVE COLLUSIVE WITNESSES; THE RAISING OF
YOUNG CATTLE IN PALESTINE, ETC.
MISHNA /. : The payment of double (in cases of larceny)
is more rigorous than the payment of four and five fold ; for the
former is applicable to animate as well as to inanimate beings,
while the latter is applicable to an ox and a sheep alone, as it is
written [Ex. xxi. 37]: "If a man steal an ox or a sheep, and
kill it or sell it," etc.
The one who steals a stolen article from a thief does not pay
double, neither does he pay four or five fold if he afterward
slaughtered or sold it.
GEMARA: It does not state that the payment of double is
applicable to a thief as well as to one who claims that the bail-
ment was stolen from him, and the payment of four and five
fold is applicable to a thief only. Shall we assume from this
that this is a support to R. Hyya b. Aba, who said in the name
of R. Johanan : One who avails himself, as regards a bailment,
of the claim that it was stolen from him, pays double; if he
slaughtered or sold it, he pays four and five fold ? Does, then,
the Mishna state, ** there is no difference," etc., " and only in
this case," etc.? It states only " is more rigorous" and men-
tioned only one, and did not care to enumerate all.
" For the payment of four,'' etc. Whence is this deduced ?
From the following Boraitha : The rabbis taught : It is written
[Ex. xxii. 6]: " For all manner of trespass" — this is 2^ general
term ; ** for ox, for ass, for lamb, for raiment" — this is a par-
ticular term; "or for any manner of lost thing" — which is
again a general term. It is, then, a general, particular, and
again a general term, in which case it is construed to be limited
to the particular term ; and as the particular term states ex-
pressly a movable subject, the substance of which is counted as
money (a value is put on it), so also the others mean only mov-
able subjects the substances of which are counted as money,
MO
I50 THE BABYLONIAN TALMUD.
excluding land, which is not movable; slaves, who are likened
to land; also documents, which, although movable, their sub-
stance is not counted for money; as well as consecrated articles,
because the Scripture reads" his neighbor s.'' (The further dis-
cussion which follows here belongs to Mishna VL, Chapter IX.
of this volume, and is to he found there.)
R. Ilaa said: If he stole a lamb and while in his possession
it grew into a ram, or a calf and it grew into an ox, this is con-
sidered a (material) change while in his possession and he
acquires title to it ; and if he subsequently slaughtered or sold
it, it is considered his own (and he is not liable to the payment
of four and five fold). R. Hanina objected to him from the fol-
lowing: If he stole a lamb and it grew into a ram, or a calf and
it grew into an ox, he is still liable to the payment of double,
and four and five fold, and the payment may be made in such
cattle as they were at the time when the theft was committed.
Now, if he acquired title by the change, why should he pay —
did he not slaughter or sell his own ? He answered: But what
is your opinion — that the change does not acquire title ? why
should he pay as at the time the theft was committed — why not
their present value ? He answered : Because he may say: ** Did
I then steal of you an ox ? I stole of you a calf!" He re-
joined: May the Merciful save us from such opinions! He
retorted: On the contrary, may the Merciful save us from such
opinions as yours.
R. Zera opposed : Let title be acquired (if not by the change
in the body of the stolen subject) by the change in its name ?
Said Rabha : There was no change of name, for a calf one day
old is already called "ox," as it is written [Lev. xxii. 27]:
" When an ox or a sheep or a goat is born^'" etc., and so also
a ram, as it is written [Gen. xxxi. 38]: " And the rams of thy
flock have I not eaten." Did Jacob then mean to say that only
rams he did not eat, but lambs he did ? Infer from this that
a lamb one day old is already termed ram. But, in any event,
is this not an objection to R. Ilaa? Said R. Shesheth: The
above Boraitha is in accordance with the school of Shammai,
who hold that the change does not affect the title of the owner,
as we have learned in the following Boraitha: If one give to a
harlot as her hire wheat and she grind it into fine flour, or olives
and she press them into oil, or grapes and she press them into
wine — one Boraitha teaches that it is prohibited (to be used for
an offering under Deut. xxiii. 19), and another Boraitha teaches
TRACT BABA KAMA (THE FIRST GATE). 151
that it is permitted ; and R. Joseph said that Gorion of Asphark
explained the above, that those who prohibited their use are of
the school of Shammai and those who permitted their use are of
the school of Hillel. What is the reason of the Beth Shammai ?
Because it is written [ibid., ibid.]: " For both (Q^) of them,"
which means to include also their changed forms ; and the Beth
Hillel are not very particular about the word" both," and hold
that it means only their original but not their changed form.
Now, let us see: The point of difference (between R. Ilaa
and R. Hanina) is that one holds that the change does, while
the other holds that it does not acquire title; but as to the pay-
ment, both agree that the original value must be paid, as further
on the Boraitha teaches: He pays double, four or five fold, as
at the time the theft was committed. Shall we assume that
from this there is an objection to Rabh, who said above that
where the principal only is paid the original value at the time
the theft was committed is paid, but double, four and five fold,
is paid as at the time of the trial? Said Rabha: If he makes
restitution in specie, he returns lambs ; but if he pays money,
he pays their present value.
Rabba said : That a change acquires title is both written and
taught: Written [Lev. v. 23] : " And he shall restore the robbed
article* that he hath taken violently away." Why did the
Scripture mention " that he hath taken violently away " ? (is it
not understood from the words " robbed article " ?) — to teach that
if it is still in the same state as at the time it was stolen it must
be returned in specie ; if not, money only shall be paid. Taught :
if one robbed wood and made it into vessels, wool and made it
into garments, he pays as at the time of the theft. " If he had
not succeeded in giving it to him (to the priest, the first shorn
wool) until he died he is free." Hence we see that change
acquires title.
Resignation of hope (when an article was robbed or lost and
its owner resigned his hope to regain it), the rabbis said that it
does acquire title for the robber. But we do not know whether
they mean that it is so biblically, or rabbinically only. It may
be said that it is biblically, because it may be equal to one who
found an article of which its owner resigned his hope to regain
it immediately after it was lost and before it reached the hands
of the finder; and the same can be said of the robber that, when
* Leeser does not translate this word literally.
152 THE BABYLONIAN TALMUD.
the robbed one resigned his hope of regaining it immediately
after he was robbed, the robber subsequently acquired title.
On the other hand, it cannot be equalled to a lost article, for
when it reached the finder he took it permissively, while the
robber, when he took the article, committed a sin. Therefore
biblically he never acquired title; but rabbinically it was enacted
that he should acquire title for the benefit of those who might
wish to repent (that they might be able to return its value).
R. Joseph, however, says that resignation of hope does not
acquire title even rabbinically (and the stolen article must be
returned in specie), and he objected to Rabba from the follow-
ing: If he stole leaven and kept it over Passover, he may say
to the owner, ** Yours is before you as it was" (although the
owner can no more derive benefit from it, still the damage is
not visible). Now, in this case it is certain that the owner has
resigned his hope of regaining it, as it is of no value at all for
him even if returned; and if this acquires title, why may he say
to him, " Yours is before you " — did not the thief acquire title
as soon as hope was resigned ? And if he desires to repent, he
ought to pay the full value in money? He answered: What
I mean is, in a case where the one resigned his hope and the
other desired to acquire title to it; but in your case, although
the owner resigned his hope, the thief did not want to acquire
title, as also to him it was of no value.
Rabha said: The discussion whether change in name or
action, or resignation of hope, does or does not acquire title
remained unexplained for twenty-two years, until R. Joseph
became the president of the college, and explained that the
change of name is equivalent to change in act, which surely
acquires title, as the reason for both is the same. For instance,
change in act — if he made vessels out of stolen wood, there is
no more wood, but vessels, and at the same time the name was
also changed ; consequently the acquisition of title comes from
both the change in act and in name. The same theory can
apply to a thing where the change in act was slight, scarcely
noticed; as, for instance, if he trimmed a hide into a horse-
blanket, in which case the principal thing is the change in name;
for before it was known as a hide, while now it is known as a
horse-blanket, and title is acquired.
But is there not a case of a robbed beam which was built
into a house — a case very similar to the above, and in which the
principal change was in name ; because before it was known as
TRACT BABA KAMA (THE FIRST GATE). 153
beam and after as a roof, and nevertheless, if not for the rab-
binical enactment for the benefit of those who might wish to
repent, biblically he had to take apart the building and return
the beam in specie? Answered R. Joseph: In this case there
was no change in name, as it was called a beam even after being
built into the house (as all the beams together are called a roof,
but each one separately still retains the name beam ; and we so
find it in a Boraitha elsewhere).
R. Zera says : Even if the beam in question does no more
retain its original name when built into the roof, it would still
not be considered a change ; for as soon as the building is taken
apart the original name " beam " is used again, while in the case
of the hide, as soon as it was changed into a horse-blanket, it
will never be called " hide " again.
R. Hisda in the name of R. Jonathan said: Whence is it
deduced that a change does not acquire title ? It is written
[Lev. v. 23]: "And he shall return the stolen article," which
means in specie under all circumstances. But is it not also
written " that he hath taken violently away" (which may be
explained to include the value thereof) ? This verse is needed
to deduce from it that he pays an additional fifth part for his
own theft, but not for that of his father (as will be explained in
Chapter IX.).
Ula said: Whence is it deduced that resignation of hope to
regain property does not acquire title ? It is written [Mai. i.
13] : " And ye brought what was robbed, and the lame, and the
sick" — that means that "what was robbed" is equal to the
lame in this respect, that as the lame cannot be remedied neither
can robbery, no matter whether before or after resignation of
hope. Rabha deduced this from the expression [Lev. i. 3] " his
offering," which means but not what was robbed. If before
resignation of hope, it is self-evident — why, then, the verse ?
We must therefore say that it means even after resignation.
Infer from this that resignation of hope does not acquire title.
** And the payment of four,'* etc. Why so? Let it be de-
duced by an analogy of expression of the word " ox " mentioned
here and *' ox " mentioned in regard to observation of Sabbath;
as there " ox " includes beasts and birds, so also here? Said
Rabha: The verse says here [Ex. xxi. 37] : " An ox or a sheep "
twice, to teach it of only those two, but no others.
**The one who steals,'' etc. Rabh said: This was taught
only before resignation of hope; but if after that the first thief
154 THE BABYLONIAN TALMUD.
acquired title, and the second thief must pay him double. Said
R. Shesheth: " I would say that Rabh said this while he was
napping, for we have learned: R. Aqiba said: Why did the
Scripture say that if he slaughtered and sold it he must pay
four and five fold ? Because the sin was deeply rooted in him
(and he acquired title to it by his acts). Now, let us see.
When ? If before resignation, what deep-rooting is there ? (he
has not acquired title and his acts helped nothing, as no one
holds that title is acquired before resignation of hope). We
must therefore say that it was after resignation. Now then, if
resignation acquires title, why should he pay four and five fold
— did he not kill or sell his own ? It may be explained as Rabha
said (that he must pay four and five fold even before resignation
of hope, and the reason is) because he repeated his sin.
(An objection was raised.) Come and hear: It is written
[Ex. xxi. 37]: ** And kill it, or sell it"; as if killed it can no
more return to life, so also in case of sale it must be such that
it should not return again. When ? If before resignation, it
does return ? We must therefore say that it relates to after
resignation. Now, if resignation acquires title, why should he
pay four and five fold — was it not his own when he slaughtered
or sold it ? It is as R. Na'hman said elsewhere, that even before
resignation of hope, if the thief hired it out to a third party for
thirty days, although the thief had no title to it, still his act of
hiring was valid. So also can our case be explained.
It was taught : One who sells before resignation of hope to
regain it, R. Na'hman says that he is liable to pay four fold
because he sold it ; and the Scripture holds him liable to pay
whether before or after resignation. R. Shesheth says that he
is free, because it cannot be called sale when the sale is invalid ;
and therefore his acts were of no effect, and the liability is only
where his acts are of effect, as in case of slaughtering. So also
was R. Elazar's opinion, that it means after resignation of hope.
As R. Elazar said : It must be declared that resignation of hope
to regain stolen property comes generally immediately after the
occurrence of the theft (and if the thief sold it, his act is valid,
because there were both resignation of hope and change of con-
trol) ; and this theory is supported by the Scripture, which holds
the thief liable to the payment of four and five fold without fear
that the owner might have not resigned his hope; and this is
only because generally hope is resigned immediately after the
occurrence of the theft. But perhaps the Scripture means even
TRACT BABA KAMA (THE FIRST GATE). 155'
before resignation of hope ? This would not be correct, for sale
and slaughtering are written together; and as in case of slaugh-
tering his acts are accomplished and cannot be undone, so also
in case of sale. But perhaps this is so when we know for cer-
tain that he has resigned his hope ? This also would not be
correct, for the same reason that sale and slaughtering are writ-
ten together; and as in case of slaughtering there is no differ-
ence whether before or after resignation of hope, so also is the
case with sale. Said R. Johanan to him : The case of kidnap-
ping [Ex. xxi. 16], in which there is surely no resignation of
hope, for no one gives up hope in such cases, and still the Scrip-
ture makes him guilty, can prove that the Scripture does not
require any resignation of hope. [From this we see that R.
Johanan holds that he is liable before resignation of hope.]
But what is the law after resignation of hope ? (Does he agree
with Rabh's opinion stated above ?) Nay, he holds him liable
whether before or after resignation of hope. Resh Lakish, how-
ever, holds him liable only before resignation of hope but not
after that ; for after resignation he acquired title, and if he killed
or sold it he did so to his own.
R. Johanan said : A stolen thing of which the owners have
not resigned hope to regain it cannot be consecrated. By the
owner thereof, because it is not under his control ; and by the
thief, because he has no title thereto. Did, indeed, R. Johanan
say so ? did not R. Johanan say that the Halakha always pre-
vails according to an anonymous Mishna, and there is a Mishna
[Second Tithe, Chap. V., M. i]: A vineyard in the fourth year
of its planting (the fruit of which must first be redeemed before
using it) used to be marked with clods (of earth), and this was
a sign that benefit might be derived from it after being re-
deemed, as benefit may be derived from earth. In the third
year of its planting, however, in which the fruit must be de-
stroyed without deriving any benefit at all from it, it used to be
marked with fragments of broken clay vessels, for a sign that as
from such fragments no benefit can be had, so also none must
be had from the fruit. Graves used to be marked with lime-
stone (to warn passers-by not to step on them lest they become
unclean), which is white, for a sign that therein were interred
(human) bones, which are also white; and the limestone was
dissolved and spread upon the graves, to be more visible. R.
Simeon b. Gamaliel, however, said that the vineyards used to
be marked in the Sabbatical year only, because the fruit was
156 THE BABYLONIAN TALMUD.
considered ownerless, and therefore warning had to be given not
to use it (because of the third and fourth years) ; but in other
years, when the fruit must not be used without the permission
of the owner, it was not marked, but, on the contrary, let the
wicked thief eat of it, and suffer the consequences.
The pious man, however, used to place money in the vine-
yard, declaring: " All that is plucked and gathered of this fruit
shall be redeemed by this money. ' ' (Hence we see that although
not under his control, still it is redeemed — how, then, can R.
Johanan say that neither can consecrate a stolen thing ?) But
lest one say that the above statement regarding the pious one is
not anonymous, but is the continuation of the statement of R.
Simeon b. Gamaliel (even then R. Johanan would contradict
himself), as Rabba bar bar Hana said in his name, that wher-
ever the teachings of R. Simeon b. Gamaliel are mentioned in
our Mishnayoth the Halakha prevails according to him, except
in three cases ? (which are enumerated in Sanhedrin), it may be
said: Do not read, " The pious man used to place money in the
vineyard, declaring, * All that was plucked,* etc., but read, ' All
that will be plucked,* etc. (i,e.y that the money was placed when
the fruit was still attached to the trees, and as in the Sabbatical
year all fruit is ownerless, the one who plucks and gathers it
becomes its owner and at the same time the money placed there
redeems it)." But, after all, could, then, R. Johanan say so —
did he not say elsewhere that the declaration of the pious ones
and of R. Dosa were of one and the same theory, and in the
declaration of R. Dosa it is plainly stated " that was plucked,"
as we have learned in the following Boraitha: R. Jehudah said:
In the morning the owner of the ground gets up and says, " All
that the poor will pluck and gather to-day is hereby declared
ownerless." R. Dosa said: The declaration is made toward
evening, and thus: " All that the poor have plucked and gath-
ered is hereby declared to have been ownerless " ? Change the
names in the Boraitha, and read instead of R. Dosa R. Jehudah,
and instead of R. Jehudah R. Dosa. Why do you declare that
Boraitha incorrect — better correct the statement of R. Johanan
and place R. Johanan instead of R. Dosa ? It may be said that
the names in the Boraitha must be changed in any event, for
from this Boraitha is to be inferred that R. Jehudah holds to
the theory of choice,* and it is known from his statements else-
* This is explained in Section Mocd.
TRACT BABA KAMA (THE FIRST GATE). 157
where that he does not hold this theory. But, after all, why
do you change the names in the Boraitha — because it would be
a contradiction between one statement of R. Jehudah and an-
other one ? There would be the same contradiction between
one statement of R. Johanan and another, as it is known that
also R. Johanan does not hold to the theory of choice [and if
we should make his declaration read, " that what the poor will
gather," it would show that R. Johanan does hold to the theory
of choice (as the declaration is made previous to the gathering
of the fruit, and whatever had been gathered by the poor had
been chosen previously in his mind)]. As R. Assi said in the
name of R. Johanan: " Brothers that have partitioned among
themselves estates that they inherited, they are considered ar
vendees, and the estates return in the jubilee year " (and we do
not say that the part which came to him by partition was chosen
previously to be his part of the inheritance, which, according to
the biblical law, does not return ; hence he does not hold to the
theory of choice ?). Therefore R. Johanan 's statement above
remains unchanged, but his statement that stolen property can-
not be consecrated, etc., is based upon our Mishna {supra^
page 149), which states, " The one who steals a stolen article
from a thief does not pay double " (which is anonymous). And
why so ? It would be correct that he should not pay to the
thief, for it is written [Ex. xxii. 6] : " And it be stolen out of
the mans house y'' but not of the house of the thief. But why
should he not pay it to the owner of the property ? We must
say, then, that to the thief he does not pay because it was not
his, and not to the owner because it was not under his control ;
and this is the very statement of R. Johanan. But still, why
should he adopt this anonymous Mishna and ignore the other —
why not adopt the anonymous Mishna which treats of the pious
ones ? Because for this statement support can be found in the
Scripture [Lev. xxvii. 14] : " And if a man sanctify his house
as holy unto the Lord," from which is to be deduced that as
"his house" is under his own control, so also other things
which are under his own control (but not otherwise).
Abayi said : If it should not be said in the name of R.
Johanan that " the piqus " and R. Dosa are of the same theory,
I would say that the pious ones hold to the theory of R. Dosa,
but R. Dosa does not hold to the theory of the pious ones,
viz. : The pious ones hold to the theory of R. Dosa because
they arrived at their decision to make such declaration by draw-
158 THE BABYLONIAN TALMUD.
ing the following a fortiori conclusion : A thief who has com-
mitted a sin, the rabbis made an enactment for him not to pay
double (to enable him to repent and to make restitution); so
much the more an enactment must be made for the poor (to
prevent them from sin). R. Dosa, however, does not concur
with them, for according to him the rabbis made their enact-
ment for the poor only and not for the thief (and the law that
the thief must not pay double to the first thief is not an enact-
ment of the rabbis but a biblical law). Said Rabha: Were it
not for the above statement of R. Johanan that the pious ones
and R. Dosa, etc., I would say that under " the pious ones"
R. Meir is meant, because did not R. Meir say elsewhere that
second tithe is consecrated property, and nevertheless as regards
its redemption the Law considers it as if it were under the
owner's control ?*
The sages of Nahardea said : No writ of replevin of personal
property is granted by the court, the bailee of which denied
its possession before the court. This is so when the bailee
denied its possession, for it would look as if the court issued a
writ the execution of which was not certain ; but when he ad-
mitted possession but not ownership by the plaintiff, a writ
might be issued. The same said also : A writ of replevin which
does not contain the following direction : " Investigate, take
possession, and retain it for yourself," is invalid ; for the bailee
can say to him, '' The property is not assigned to you, and you
are not the proper party plaintiff." Said Abayi : If the direc-
tion is contained, but it states only as to part of it, the bailee
cannot say that he is not the proper party plaintiff ; for if part
is assigned to him by the court, he has authority to replevy the
whole. Said Ameimar : If the writ did not contain the above
direction, and nevertheless he took possession of it, the court
cannot compel him to return it. (Rashi explains that according
to other commentators it means that if the messenger of the
court who executed the writ of replevin has kept the property
for himself for a debt due him from one of the parties to the
litigation, the court cannot compel him to give it up. Rashi
approves of this explanation, saying that he found it in the
Decisions of the Gaonim.) R. Ashi, however, says that the
court has the right to compel him to return it, because when
* R. Meir's statement and the full discussion of it will be found translated in the
forthcoming tracts at the proper place.
TRACT BABA KAMA (THE FIRST GATE). 159
the court appointed one to execute its mandates it was upon
the written condition that he should obey all the orders of the
court ; consequently he is only a messenger of the court and he
has no right to keep it for himself. And so also the Halakha
prevails.
MISHNA //. : If two witnesses testify that one stole (an ox
or a sheep), and either the same or other witnesses testify that
he slaughtered or sold the same, he must pay four and five fold.
If one stole the same and sold it on the Sabbath, or he stole and
sold it for idolatry ; or he stole and slaughtered it on the Day
of Atonement ; or he stole from his father and slaughtered and
sold it, and thereafter his father died ; or he stole and slaughtered
it and then consecrated it — in all those cases he pays four and
five fold. The same is the case if he stole and slaughtered it in
order to use it as a medicine, or to feed his dogs therewith ; or
he slaughtered it and it was found unfit for eating {trephd) ; or
he slaughtered it in the Temple court without consecrating it as
an offering. R. Simeon, however, makes him free in the two
last-named cases.
GEMARA : " If he stole and sold it on the Sabbath^'' etc. But
have we not learned elsewhere that in such a case he is free ?
Said Rami b. Hama : The Boraitha which says that he is free
from the payment of four and five fold treats of a case where the
thief sold the stolen property to the owner of a garden and re-
ceived in payment figs which the thief himself plucked on Sab-
bath (and thus incurred the penalty of capital punishment, and
there is a rule that where there is capital punishment there can
be no mention of civil liability). But it may be said that such
must not be considered a sale. For if, for instance, the owner
of the garden should claim before the court that he has not re-
ceived from the thief the value of the figs, we would not make
him liable to pay for the figs as he has committed a crime, and
the above maxim applies also here ; consequently there was no
sale.
Said Rabha : Even in a case where the court would not enter-
tain the plaintiff's complaint, the sale would still be called a sale
as regards the same required by Scripture. As, for instance, the
law prohibits the hire of a harlot, even if she was his own mother
(and he promised her a sheep as her hire). Now, if she would sue
him before a court for failing to pay her the hire, would the court
then direct him to pay it — and nevertheless if he had given her
the sheep it would be called " harlot's hire " and its use would be
i6o THE BABYLONIAN TALMUD.
prohibited ? The same is the case here : although as regards the
enforcement of payment of the claim the court would not inter-
fere, still, because he transferred it to him in this manner the sale
is valid.
'* If he stole and sold it on the Day of Atonement,'' etc. Why
so? It is true that there is no capital punishment ; but is he not
liable to punishment by stripes — and there is a rule that he who
is punished by stripes is free from payment ? It may be said
that it is according to R. Meir, who holds that stripes do not ab-
solve from civil liabiHty. If so, then let him also be liable if he
slaughtered it on the Sabbath. And lest one say that R. Meir
holds only that stripes do not free from payment but capital
punishment does, have we not learned in the following Boraitha :
If he stole and slaughtered it on the Sabbath , . . (although
he incurs the death penalty) he pays four and five : such is the
dictum of R. Meir. The rabbis, however, make him free ? Said
the schoolmen : Leave the Boraitha alone, as it was taught in
regard to the same : R. Abin, R. Ilaa, and the whole society said
in the name of R. Johanan that the Boraitha treats of a case
where he slaughtered it through an agent. But is there, then, a
case where one commits a transgression and another is liable for
it (have we not a rule that there is no agent to commit a sin) ?
Said Rabha : The case here is different, for the verse reads [Ex.
xxi. 37] : '' And kill it or sell it." As in case of sale there must
be another person (to buy it), so also in case of slaughtering,
when it was slaughtered by another under his direction. The
school of R. Ishmael inferred this from the additional word
"or"; the school of Hezkiah inferred it from the word "for"
used in that verse.
Mar Zutra opposed : Is there, then, a case where one, if he
did it himself, would not be liable, but if he did it though a mes-
senger he would be liable ? Said R. Ashi to him : There the
reason is not because he is not liable, but because he is guilty of
a capital punishment, and the above rule applies. Now, when
you say that the above Boraitha treats of a case where he slaugh-
tered it through a messenger, why do the rabbis make him free
of four and five fold ? The schoolmen explained that by the
" rabbis " mentioned in the Boraitha in question is meant R.
Simeon, who holds that slaughtering which is not legal is not
called slaughtering in accordance with the requirements of the
Scripture.
"'If he stole from his father, ''etc. Rabha questioned R. Nahman :
TRACT BABA KAMA (THE FIRST GATE). i6i
If he stole an ox belonging to two partners and slaughtered him,
and then he confessed to one of the partners, what is the law?
Shall we say that the Scripture [Ex. xxi. 37] meant five whole
oxen, but not half oKtn (for every partner has a right only to
one-half of each ox), or shall we say that in " five oxen " the
halves are included ? He answered him : The Scripture reads
** five (whole) oxen," and not half o^^n. He objected: It states
further: *' If he stole from his father and slaughtered or sold it,
and thereafter his father died (and the thief became one of the
heirs), he pays four or five." Now, when he is one of the heirs,
is this not equal to the case where he confessed to one partner
(and this makes him free entirely for the above reason — " an ox "
and not " a half ox " ; and the same ought to be here, because he
is an heir, and the payment of a " whole " ox does no longer
hold)? He answered him: The case here was that his father
before he died laid already the matter before the court. But how
is it if he had not laid the matter before the court — does he not
pay ? If so, why should it state in the latter part, " If he stole
from his father and he died, and thereafter he slaughtered or sold
it, he does not pay " ? Let the Tana distinguish in the very first
case, thus : This was said only where the deceased laid the matter
before the court ; but if he had not yet done so, he does not pay ?
He rejoined : It is really so ; but because it states in the first part,
"■ If he stole from his father and slaughtered it, and thereafter the
father died," it also states in the latter part, " If he stole from his
father, who soon died, and thereafter he slaughtered or sold it."
On the next morning R. Nahman said to Rabha : (I have recon-
sidered the matter, have changed my mind, and came to the con-
clusion thus:) In the expression " five oxen " halves are included,
and what I told you last night was said without careful delibera-
tion. But what difference is there between the first and the last
part (why does the latter part make him free) ? He answered :
The Scripture reads, " and killed it," which means that as the
stealing was in transgression, so also ought to be the killing, as is
the case in the first part. In the latter part, however, the killing
was no more in transgression, as it belonged to him.
" One who slaughtered^' etc., '^ and it was found unfit,' etc.
Said R. Simeon in the name of R. Levi the elder : It is consid-
ered slaughtered only when the act is fully accomplished. R.
Johanan, however, says : It is so considered from the very be-
ginning. Said R. Habibi of Husnahah to R. Ashi : Shall we
assume that R. Johanan holds that the prohibition to use meat
zi
x62 THE BABYLONIAN TALMUD.
of cattle slaughtered in the Temple court, which was not con-
secrated as an offering, is not biblical? (See Kiddushin, p. 58.)
For if it is biblical, as soon as the act of slaughtering began it
became a forbidden thing from which no benefit must be derived,
and the remainder of the act was carried out on what belonged
no more to the owner — why then is he liable to pay four and
five fold? Said R. A'ha the son of Rabha to him : The liability
is incurred from the very beginning of the act. Said R. Ashi :
This is no answer, for it reads " and kill it," which means the
fully accomplished act, which would not be so in this case. But
then the above question remains ? He rejoined : So said R.
Gamda in the name of Rabha : The liability is incurred in case
he cut part of the trachea and gullet outside, and the remainder
of same inside the Temple court (in which case there is the fully
accomplished act before it became a prohibited thing).
MISHNA ///. : If two witnesses testify that one stole an
animal, and those very same witnesses testify that he had there-
after slaughtered or sold it, and subsequently those witnesses are
proved collusive, the collusive witnesses must pay the full lia-
bility of four and five fold. If two witnesses testify that he stole
it and other two testify that he slaughtered or sold it, and both
sets of witnesses are proved collusive, the first set pays the
double and the second set pays the balance of the five. If the
second set is found collusive, the thief pays for two and the col-
lusive witnesses for three. If only one of the second set is
proved collusive, the whole testimony of the second set is invali-
dated. If one of the first set was found collusive, the whole tes-
timony in the case was invalidated ; for if there is no theft, there
can be no (liability for) slaughtering or selling.
GEMARA : It was taught : A collusive witness — Abayi said
that he is considered such from the date on which he gave the
collusive testimony (and all the testimony he gave since then is
incompetent) ; for as soon as he gave the collusive testimony he
was considered wicked, and it is written [Ex. xxiii. i] : " Put not
. . . wicked to be a witness." Rabha says that he is con-
sidered such only from the date on which he was proved collu-
sive ; for a collusive witness is an exception in the law, for they
are two against two. Why, then, give more veracity to the
latter two than to the former? Therefore the law applying to a
collusive witness begins only from the date on which he was
proved such. According to others, Rabha agrees with Abayi
that he is considered collusive from the date on which the tes-
TRACT BABA KAMA (THE FIRST GATE). 163
timony was given ; but in case they have in the meantime signed
their names to a bill of sale, Rabha does not hold the convey-
ance invalid, in order that the grantee should suffer no damage.
In which case can there be a difference in those two versions ?
In case two witnesses proved the collusiveness of one and two
others proved the collusiveness of the other, or that their testi-
mony was made incompetent by other witnesses testifying that
they were robbers : according to the first version the reason of
Rabha is because it is an exception. Here there is no exception,
because there are four against two ; consequently Rabha would
agree with Abayi that all their testimony given in the meantime
is invalid. According to the others, who say that the reason is
that the grantee shall suffer no damages by invalidating the con-
veyance, there is no difference whether there were two or four.
R. Jeremiah of Diphthi said : There happened a case and R.
Papa acted in accordance with Rabha. R. Ashi, however, said
that the Halakha prevails according to Abayi. There is a rule
that always the Halakha prevails according to Rabha when he
differs with Abayi, except in the six cases, the case at bar being
one of them.
There is an objection from our Mishna, which states : ^* If two
witnesses testified that he stole an animal, etc., they pay the full
liability." Shall we not assume that they at one time testified
as to the theft and at another time as to the slaughtering, and
then they were first proved collusive as to the theft and subse-
quently as to the slaughtering? Now then, if they were con-
sidered collusive from the date on which they gave the collusive
testimony, as soon as they were proved collusive as to the theft,
it was established that their testimony as to the slaughtering was
incompetent, and why should they pay for the testimony of the
slaughtering ? It may be explained that the case was that they
were proved collusive as to the slaughtering first. But still,
when they were subsequently proved collusive as to the theft it
was established that they were incompetent, and why should
they pay for their testimony of slaughtering ? The Halakha
prevails that the Mishna treats of a case where their testimony
was given at one and the same time, and subsequently they were
proved collusive.
Rabha said : Witnesses that testified that one has committed
murder and the court found the accused guilty on their testimony,
and two other witnesses subsequently denied the testimony,
and still another set of two witnesses testified that the first two
i64 THE BABYLONIAN TALMUD.
were with them at another place at the alleged time of the murder
{alibi), which testimony makes them collusive (according to Scrip-
ture), they must suffer the death penalty, for denial is the begin-
ning of collusion which is subsequently proved by the last wit-
nesses. And he said again : My theory is based upon the following
Boraitha : *' If two witnesses testify that a certain person blinded
his slave's eye and thereafter knocked out one of his teeth, and
they also testify that the owner of the slave admitted it, and sub-
sequently the witnesses are found collusive, they must pay to the
slave the value of the eye." Now, how is the case? Shall we
assume that it was as stated without any other set of witnesses to
deny the former testimony, and the slave was manumitted on
their testimony, then the expression ought to be " and they pay
to him (instead of * to the slave,' for he was already manumitted)
the value of his eye, and to his master the value of an uninjured
slave " ? Another proof is that the case is that there was no
denial — that they also testify that the owner admitted it, for what
purpose it this ? We must therefore say that another set of two
witnesses testify that he knocked out one of his teeth first, and
then blinded his eye, in which case the owner must pay him the
value of the eye ; then came a third set of witnesses and testified
that he first blinded his eye and then knocked out his tooth, in
which case the owner must pay him only the value of the tooth,
because there is a contradiction between the first and the middle
sets, and the statement that the owner admitted it means that he
is more satisfied with their testimony, as he has to pay only the
value of a tooth, and the statement that they were found col-
lusive has reference to the middle set, and nevertheless it is stated
that they must pay the slave the value of the eye, hence that
denial is the beginning of collusion. (For if it is not, why should
the law of collusion apply to them after their testimony became
incompetent?) Said Abayi : Nay, not as you say, that because
if there would be three sets of witnesses, as soon as the middle
one was denied by the first one the third set could not make it
collusive. The case, however, was that the set which became
afterwards collusive is the first set, and your proof from the fact
that the Boraitha does not state that the collusive set has to pay
to the master can be explained thus : The second set did not deny
the fact, but only reversed the order, i.e., they say to the first
set, " On that day on which you claim that the master had blinded
his eye," etc., ** you were with us and you could not witness the
crime ; but we did witness on another day that the master first
TRACT BABA KAMA (THE FIRST GATE). 165
knocked out his tooth and then bHnded his eye." And therefore
the Boraitha does not state that they must pay the value of the
slave, etc., because the slave becomes free even on their testimony ;
and I take this from the last part of the same Boraitha : '' We
testify that a certain person knocked out his slave's tooth and
blinded his eye, and this is just as the slave says, and thereafter
they were proved collusive, they pay the value of the eye to the
owner." Now, how was the case? If the second set does not
admit any wounding at all, then the first set must pay to the
owner the value of the whole slave. It is therefore apparent that
all admit that he wounded him, but that they reverse the order
of the wounding, and thus prove them collusive. Now, as the
last part treats of a case where they became collusive through the
reversal, the first part must also treat of a similar case. (Says the
Gemara :) After all, let us see how the case was : If the second set
testify that it happened on a later date, then the first must still
pay the full value of the slave, because on the day on which they
testify it happened the slave had not to be manumitted? We
must therefore say that the second set testify that it happened
on an earher date. But still, even in such a case, if the slave
had not summoned him to court before the testimony of the first
was given, they rrust still pay the full value of the slave ; for be-
fore their testimony the owner was not subject to liability (to
manumit the slave) ? It must therefore be said that the case was
after judgment was given.
R. Zera opposed : Whence do we know that money must be
paid ? Perhaps when he only blinded his eye he is manumitted
because of that, if when he only knocked out one of his teeth he
is manumitted because of that, and when he did both — blinded
his eye and knocked out one of his teeth — he is also only manu-
mitted and no money is paid. Said Abayi : As to your question,
the verse reads, " for the sake of his tooth," which does not mean
for the sake of his tooth and eye ; and also " for the sake of his
eye," which does not mean for the sake of his eye and tooth.
Regarding witnesses whose testimony was first denied and
then proved collusive (as to which Abayi and Rabha differ above),
R. Johanan and R. Elazar also differ : One holds that they are
put to death, the other holds that they are not. It may be
inferred that the one who holds that they are not put to death
is R. Elazar, for he said elsewhere that witnesses whose testi-
mony was only denied (but not proved collusive), in a case in
which human life was involved, have to suffer the penalty of
i66 THE BABYLONIAN TALMUD.
stripes. Now, if we should assume that R. Elazar is the one
who holds that they have to suffer the death penalty if proved
collusive, why should they be punished with stripes in case their
testimony was only denied? is it not a ''negative process" that
entails the death penalty by the court, and in such cases no
stripes are administered ? We must therefore say that it is R.
Elazar who holds in the above Boraitha that they have not to
suffer the death penalty.
" They are punished with stripes." Why so? Are they not
two against two ? Why should more credence be given to the
one set than to the other? Said Abayi : The case is that the
supposed murdered person appeared in court alive.
MISHNA IV. : If two witnesses testify that he stole it, and
one witness, or he himself, testifies that he slaughtered or sold it,
he pays only two, but not four and five fold. If he stole and
slaughtered it on Sabbath, or sold it for purposes of idolatry ; if
he stole it from his father and this latter died, and subsequently
he slaughtered or sold it ; if he stole and consecrated it, and
thereafter slaughtered or sold it — in all those cases he pays only
double and not four and five fold. R. Simeon says : If one stole
consecrated cattle for which the one who consecrated them is
responsible, and slaughtered them, he must pay four and five
fold ; if, however, it is that for which he is not responsible, the
thief is free.
GEMARA: The Mishna states, "If one witness," etc. Is
this not self-evident ? It may be said that it means to teach us
that when he himself admits that he slaughtered, it is equal to
the case where one witness testifies ; as in the latter case, if
thereafter another witness comes and testifies to the same thing,
their testimony is taken together to make up the requisite num-
ber of witnesses, so also in this case the testimony of another
witness is added to his own, in opposition to what R. Huna said
in the name of Rabh, that one who admits to the court that he
has incurred the liability to pay a fine and thereafter witnesses
appear, he is free. R. Hisda objected to R. Huna's statement
from the following : It happened that R. Gamaliel blinded the
eye of his slave Tabi and he was very glad of the occurrence.
When he met R. Jehoshua, he said to him : Do not you know
yet that my slave Tabi is manumitted because I blinded his eye?
Said R. Jehoshua to him : Your statement does not make him
free, for he has no witnesses. Hence we infer from R. Jehoshua's
answer that if there appear witnesses after an admission of the
TRACT BABA KAMA (THE FIRST GATE). 167
incurrence of the liability to pay a fine, the latter must be paid ?
He answered him : The case of R. Gamaliel is different, for he
had not admitted it before the court. But was, then, R. Jehoshua
not the president of the court ? Yea, but it was not during the
session of the court, but only as to a private person. But have
we not learned in another Boraitha that what R. Jehoshua said
to him was : This is nothing, for you yourself admitted it (from
which is to be inferred that even if witnesses appear thereafter
he is also free) ? And is it not also to be assumed that the rea-
son for the different statements of the Boraithas is : The Tana
who says that he told him, " because he has no witnesses," holds
that if witnesses should appear after the admission the slave
would be liberated, and the Tana who says that R. Jehoshua
told him, '^ because you already admitted," means to say that
after admission the testimony of witnesses is of no avail ? Nay,
all agree that witnesses who appear after an admission count
nothing ; but the point of difference is this : The one who says,
'' because he has no witnesses," means that it was not before
the court, and the one who says, " because you already admitted,"
means that he had done so before the court.
It was taught : '* One who admits that he has incurred the
liability of a fine and thereafter witnesses appear, Rabh says that
he is free. Samuel, however, says that he must pay." Said
Rabha for Ahilai : The reason of Rabh's theory is because in the
verse [Ex. xxii. 3] the word " found " is repeated twice, which
means that if it should be " found " by testimony of witnesses, he
should be " found " (liable to pay the fine) by the court, exclud-
ing the case of self-incrimination. But is this not deduced from
the verse [ibid., ibid. 8] : " And he whom the judges may con-
demn " ? We must therefore say that the first-quoted verse
means to exclude the case where one admits his liability to pay a
fine and thereafter witnesses appear.
What does Samuel deduce from this verse? He deduces that
the thief himself must pay double, as it was taught in the school
of Hezkiah that the double payment applies only when he him-
self stole it, but not where he claims that it was stolen from him.
Rabh objected to Samuel from the following: If on seeing that
witnesses were coming the thief admits the theft, but denies the
slaughtering, etc., he pays only the principal. (Hence we see
that if he admits before witnesses appear he is free from the pay-
ment of double, which is a fine ?) He answered him : The case
is that the witnesses withdrew and did not appear. But since it
i68 THE BABYLONIAN TALMUD.
states in the last part : " R. Elazar b. R. Simeon said : Let wit-
nesses come and testify (after he admitted, so that the fine should
be paid)," it is to be inferred that the Tana of the first part holds
that he is not liable (although the witnesses came and testify ?)
Said Samuel : The very same R. Elazar b. Simeon quoted by you,
who holds as I do, is the basis of my theory.
According to Samuel, surely Tanaim differ (and the Tana of
the first part cannot be explained to be in accordance with him) ;
but according to Rabh is it to be assumed that he explains Elazar's
statement to be in accordance with him, namely : Elazar's state-
ment was only where he admits for fear of witnesses ; but where
the admission is made without such fear, even he would concede
that he is free ? (Yea, so it is.) Said R. Hamnuna : It seems
that Rabh's theory is applicable to the following case : If one
confesses to theft and thereafter witnesses testify to the same, he
is free from fine, for by his confession he made himself liable to
pay the principal ; but when he first denies, and after witnesses
testify that he committed the theft he confesses to both the theft
and the slaughtering, he is liable to pay four and five fold, for he
sought to free himself entirely. Said Rabha to him : By your
statement you caused grief to all the elders of the college : Did
not R. Gamaliel by his confession, '' I have blinded the eye of
my slave," make himself free from fine, and still R. Huna, who
was objected to from this fact by R. Hisda, did not give the reason
stated by you (and R. Huna was an actual disciple of Rabh?
hence, your statement is not correct) ? (Notwithstanding the ob-
jection of Rabha, it was taught by R. Hyya b. Aba in the name
of R. Johanan exactly as stated by R. Hamnuna.)
Said R. Ashi : From both our Mishna and the above-quoted
Boraitha it is also to be inferred that R. Johanan's statement is
correct, viz. : The Mishna, viz, : " If two witnesses testify that he
committed the theft," etc. Why should it not better state : " If
one witness or he himself testifies that he stole and slaughtered
it, he pays only the principal " (for all what the Mishna means to
teach us is that one's own confession frees him from the payment
of fine ; and if it should state as just mentioned, it would also
include the payment of four and five fold)? We must therefore
say that the Mishna comes to teach that only in case he did not
make himself liable even for the payment of the principal, as
e. g. that witnesses testify to the theft, and he only confessed,
or one witness testifies to the slaughtering, etc., then only may it
be said that his confession is equivalent to the testimony of one
TRACT BABA KAMA (THE FIRST GATE). 169
witness ; so that if another witness should come thereafter and
testify, his testimony would be added to that of the first witness
and he would be liable ; so also if after he confessed one witness
appears, his testimony should be added to the confession, and he
should be liable to pay four and five fold ; but when he first con-
fesses to both the theft and the slaughtering, or only one witness
testifies thereto, in which case he makes himself liable to the pay-
ment of the principal, if even thereafter another witness comes,
his testimony is not to be added to the confession, and he has to
pay only the principal.
The Boraitha, viz. : '* If one seeing witnesses coming confesses
to the theft, but denies the slaughtering," etc. Why does the
Boraitha state as it does? Let it state, "... and he admits
that he stole it, or that he slaughtered and sold it, he pays the
principal only " ? (And we would infer from this that also when
he even admits only the slaughtering, in which case he seeks to
be entirely free, it is nevertheless considered an admission to make
him liable for the principal ?) We must therefore say that it
means to teach us that only when he confess to the theft which
makes him liable to the payment of the principal he is free (from
fine), but when he does not confess to the theft, but the same is
proved by witnesses and thereafter he admits that he slaughtered
and sold it, and subsequently the same is also proved by wit-
nesses, in which case he did not make himself liable even to the
payment of the principal, he is liable (also to pay fine). Hence, we
see that the admission of having slaughtered it (not coupled with
the confession to the theft) is not considered an admission at all ?
Nay, it may be said that it means to teach us this very thing, viz. :
Because he confessed to the theft, although he did not admit that
he slaughtered or sold it, and thereafter witnesses testify that he
slaughtered and sold it, he is nevertheless free from four and five,
for the Scripture reads, "■ four or five," but not '' four or three "
(and here, when he confesses to the theft, he is liable to the pay-
ment of the principal only, and if we should make him liable for
the slaughtering, etc., he would have to pay two more for a sheep
or three more for an ox, so that it would be '' three or four," but
not " four or five ").
" If he stole and consecrated it, and thereafter slaughtered or
sold it,'' etc. This would be correct in case of slaughtering, for at
the time of the slaughtering it was already consecrated property
and not that of the owner. But why should he not be liable for
the consecration itself — is this not considered a transfer from one
I70 THE BABYLONIAN TALMUD.
owner to another, and what difference is there whether he sold it
to a human being or to the sanctuary ? Nay, there is a difference :
In the first case its name is changed, for before the sale he is the
ox of Reuben and after the sale he is the ox of Simeon, while
when he consecrated him he still continues to be known as ** Reu-
ben s consecrated ox."
'^ R. Simeon says,' etc. Now, when R. Simeon holds that
there is no difference whether he is sold to another person or
sold to the Sanctuary, then the reverse should be the conclusion :
If his responsibility still continues after the consecration, he
should be free, because it is still under his control ; and if his
responsibility ceases upon the consecration he should be liable,
for by the act of the consecration he placed it under the control
of the Sanctuary ; and according to him, it is the same as if he
sold it to a commoner ? R. Simeon's statement has reference to
the following Boraitha : '' It may be said that the payment of
four and five fold applies neither to one who steals stolen prop-
erty from a thief, nor to one who steals consecrated property
from the house of him who consecrated it, because it is written
[Ex. XX. 6] : * And it be stolen out of the mans house,' which
means but not out of the house of the Sanctuary." * R. Simeon
says : If he is responsible for the consecrated property, he is
liable, for the reason that it is still under his control, and the
verse, " be stolen out of the mans house," is still to be applied,
but not when it is not under his control. Rabha questioned : If
one makes a vow to bring a burnt-offering and sets aside an ox
for such offering, and thereafter the ox is stolen, may the thief
make restitution by returning a sheep, according to the rabbis,
or a dove or a pigeon, according to R. Elazar b. Azariah, as we
have learned in the following Mishna : *' If one say, ' I oblige
myself to bring a burnt-offering,' he may bring a sheep ; R. Elazar
b. Azariah, however, says that he may bring a dove or a pigeon."
Now, how is the law in our case : Shall we assume that the thief
may say, "You obhged yourself to bring a burnt-offering, and
here it is," or the owner may say, *' My wish is to do this merit in
the best manner possible " ? After he questioned, he himself
answered : The restitution of the thief is acceptable according to
the rabbis if it is a sheep, and according to R. Elazar b. Azariah
if it is a fowl. R. A'ha the son of R. Iqa taught that the above
* Because it now belongs to the Sanctuary and not to him who consecrated it, it
is considered as if it would be stolen from the house of the Sanctuary.
TRACT BABA KAMA (THE FIRST GATE). 171
saying of Rabha was not questioned and answered as stated
above, but was originally said so by him.
MISHNA V. : If the thief sells all but one-hundredth part of
it, or he is a co-owner of it, or he slaughters it illegally so that it
becomes a carrion, or he lacerates it (from the nostrils to the
heart), or he tears the trachea and gullet, he pays only double,
but not four and five fold.
GEMARA: What is meant by one-hundredth part of it?
Said Rabh : It means of the meat which is made permissible for
use by the legal slaughtering of the animal. Levi, however,
holds even of the wool which is to be shorn. So also was taught
plainly in a Boraitha. But according to whom, then, is Rabh's
statement ? According to R. Simeon b. Elazar of the following
Boraitha, who said : '' If he sells all but one of its fore or hind
legs, he does not pay four and five fold ; if, however, he sells all
but its horns or its wool, he does pay four and five fold." On
what point do they differ? The first Tana holds that " and kill
it or sell it " [Ex. xxi. 37] means, as in case of slaughtering, it
must be the whole, so also in case of sale. R. Simeon b. Elazar,
however, holds that the fore and hind legs, which require legal
slaughtering, if he excluded them from the sale, it is considered
a suflficient remainder, and he is free from payment of four and
five fold ; but the horns and wool, which require no slaughtering,
are not considered a sufficient remainder.
The rabbis taught : " One who steals an animal one leg of
which is missing, or which is lame or blind, or one who steals an
animal belonging to a co-partnership, is liable. But partners that
steal together are free." But have we not learned in another
Boraitha that partners are liable ? Said R. Na'hman : This pre-
sents no difficulty : The first Boraitha treats of a case where one
partner stole of his co-partner (and therefore it is not considered
a sale of the whole, for he himself is entitled to half), and the
other Boraitha treats of a case where one partner steals from a
third party. Rabha objected to R. Na'hman : " Lest it be as-
sumed that a partner who steals from his co-partner, or two part-
ners that steal together (from a third party), should be liable,
therefore it is written [ibid]. ' And kill it,* which means the
whole of it, which cannot be the case here ? " Therefore said R.
Na'hman : This presents no difficulty : The Boraitha which
states that he is liable means a case where he slaughters it with
the knowledge of his co-partner (in which case he is considered
the agent of the other partner, and the act is that of both part-
172 THE BABYLONIAN TALMUD.
ners), and the Boraitha which states that he is free means a case
where he slaughters it without the knowledge of his co-partner
(in which case it is considered that he slaughters the part stolen
by his co-partner, which he did without permission, and it was
said above that if one slaughters the animal stolen by another
one is free from four and five fold ; for his own half, however, he
cannot be liable, for it is not considered the slaughtering of the
whole).
The Rabbis taught : " If he steals it and gives it to another
party who slaughters, sells, or consecrates it ; or he steals and sells
it to another party on credit, or exchanged it, or makes a present
of it, or gives it to his creditor in payment of a loan made to him,
or he gives it to his creditor in payment for merchandise sold to
him on credit, or makes it a bridal-gift — in all those cases he pays
four and five fold." What new thing does this mean to teach us ?
The first part, which states the case where he gives it to another
who slaughters it, means to teach us that in this particular case
he is liable for the act of his agent, although in other cases one
who appoints a messenger to commit a transgression is not liable
for the act of the messenger (see above, p. 120, and the latter
part, which states that he consecrates it, means to teach us that
there is no difference whether he sells it to an ordinary person or
to the Sanctuary.
MISHNA VI. : (The liability to the fine of four and five fold
applies only where the thief slaughters it after he acquired title to
it, or he slaughters it outside of the owmer's premises, namely :)
If he steals it within the premises of the owner and slaughters or
sells it ouside of it, or he steals it outside of the owner's premises
and slaughters or sells it within the premises, or the stealing,
slaughtering, and sale are outside of the owner's premises, he
pays four and five fold. If, however, the stealing, slaughtering,
and sale are within the owner's premises, he is free.
If while the thief is leading the animal out it dies, still within
the premises of the owner, he is free. If he lifts it up or leads it
out of the premises, and it dies, he is liable. If he redeems his
first-born son with it, or he gives it to his creditor, or to a gratu-
itous bailee or to a borrower to do work with it, or to a bailee for
hire, or to a hirer, and the other person is drawing it forth and it
dies while still on the premises of the owner, he is free. If, how-
ever, he lifts it up or he leads it out of the premises and it dies,
he is liable.
GEMARA. Ameimar questioned : Was it enacted that a
TRACT BABA KAMA (THE FIRST GATE). 173
bailee should not be liable unless he should first draw (see above)
the bailment, or not ? Said R. Imar to him : Come and hear the
statement of our Mishna : '' If he redeems his first-born son with
it, or he gives it to his creditor, etc., he is free." Does this not
mean that the bailee drew it ? Infer from this that there is such
an enactment. We have so also learned in the following Boraitha :
" R. Elazar said : As it was enacted that a buyer has to acquire
title by drawing the article he buys, so also was it enacted that
the bailee should draw the bailment when he takes it under his
control." So also we have learned in a Boraitha with the addi-
tion : '* And as title to real property can be acquired by money,
conveyance, and occupancy {hazaka), so also title to rents can be
acquired by those three." What kind of rents ? Shall we assume
rent of personal property — can, then, personal property be rented
by a conveyance ? Must it not be drawn ? Said R. Hisda : Rent
of real property is meant.
R. Elazar said : If it was noticed that the thief was hiding
himself in the forest (for the purpose of stealing an animal) and
he slaughters or sells it therein, he pays four and five fold. Why
so — he had not drawn it? Said R. Hisda: The case was that he
drove it on with a stick. But if he did it so openly that it could
be noticed, then he is a robber (and not a thief, and according to
the Scripture he is free from the payment of four and five fold ) ?
Nay, because he tried to hide himself, he is considered a thief.
Under what circumstances, then, can he be considered a robber?
Said R. Abbahu : As, for instance, Benayahu the son of Yehoy-
ada, of whom it is written [II Samuel, xxxiii. 21]: "And he
snatched the spear out of the Egyptian's hand and slew him with
his own spear." R. Johanan says : As, for instance, the men of
Shechem, of whom it is written [Judges, ix. 25] : '' And the men
of Shechem set persons to lie in wait for him on the top of the
mountains, and they robbed all that passed by them on that way."
The disciples questioned R. Johanan b. Zakkai : Why did the
Scripture treat more rigorously with the thief than with the rob-
ber? He answered them : Because the robber put the honor of
his Creator at least on the same level with that of His servant,
while the thief did not do so, but, on the contrary, considered the
eye and ear of Heaven as if vt would not see and hear ; as it is
written [Is. xxix. 15] : " Woe unto those that seek to hide deeply
their counsel from the Lord, so that their works may be in the
dark, and they say. Who seeth us?" etc. ; and it is also written
[Ps. xliv. 7] : '' And they say, The Lord will not see, and the God
174 THE BABYLONIAN TALMUD.
of Jacob will not take notice of it " ; and it is also written [Ezek.
ix. 9] : *' For they have said, The Lord hath forsaken the land and
the Lord seeth not."
R. Meir said : The following parable was related in the name
of R. Gamaliel : To what is the above equal ? To two persons
who lived in one and the same town. One made a feast and in-
vited all the inhabitants of the town, but not the princes ; the
other one made a feast and invited neither the inhabitants nor
the princes. Whose punishment ought to be severer? Surely
that of the first one.
The same said again : Ponder over the greatness of labor : In
case of stealing an ox which he prevented from laboring, the thief
pays five ; in case of a sheep which does not perform any work,
he pays only four. R. Johanan b. Zakkai said : Ponder over the
greatness of the honor of creatures. For an ox who walks with
his feet, he pays five ; but for a sheep, for which he had to hu-
miliate himself by carrying it on his shoulders, he pays only four.
MISHNA VIL : No tender cattle must be raised in Palestine,
but they may be raised in Syria and in the deserts of Palestine.
No cocks or hens must be raised in Jerusalem (even by lay-
men), because of the voluntary offerings (the meat of which may
be eaten in any part of the city, and as the habit of the named
fowls is to peck with their beaks in the rubbish, they may peck
into a dead reptile and then peck in the meat of the offerings).
In all other parts of Palestine priests only must not raise them, as
they use leave-offerings for their meals, and they must be very
careful about cleanliness. Swine must not be raised by Jews at
any place. One shall keep no dog unless on a chain, and no
noose is to be laid out for trapping pigeons unless fifty riss dis-
tant from inhabited places.
GEMARA : The rabbis taught : '' No tender cattle must be
raised in Palestine but in its forests ; in Syria, however, even in
the inhabited places, and, of course, in all other places." Another
Boraitha states : No tender cattle must be raised in Palestine but
in the deserts of Judea, and in those of the village of Achu ; and
although no tender cattle must be raised, still large cattle may,
for no restrictions are made for the community unless most of the
people can observe them. Tender cattle may, but large cattle
may not be imported from other countries. And although they
must not be raised, still they may be kept during the thirty days
immediately preceding a feast day, or the celebration of the wed-
ding of one's children. But this shall not be construed to mean
TRACT BABA KAMA (THE FIRST GATE). 175
that they may be kept for thirty days, and that if some cattle
were bought less than thirty days before the feast day that one
may continue keeping them after the feast day until the expira-
tion of the thirty days, but that as soon as the feast day is over
he must not keep them any longer. The butcher, however, may
buy and slaughter them at once, or keep them (until the market
day), provided that the cattle he bought last shall not be kept
after the market-day to complete the thirty days.
The disciples once questioned R. Gamaliel, whether it was
permitted to raise tender cattle, and he answered : " Yea." But
have we not learned in our Mishna that it is not ? It must be
said, therefore, that they questioned him whether it was permitted
to keep them, and he answered them : " Yea, provided they are
kept locked in the house, so that they shall not go out and pas-
ture with the flock."
The rabbis taught : It happened that a pious person was suf-
fering from a severe cough, and the physicians declared that he
could not be cured unless by drinking every morning fresh-drawn
milk which was still warm. He obtained a goat, which he tied to
the leg of his bed, and drew her milk every morning. Once his
colleagues came to visit him, and on seeing the goat tied to the
leg of the bed they turned back, saying : There are armed rob-
bers in the house of this man (for the habit of a goat is to stray
upon other's fields), and shall we visit him ? They sat down and
examined into his conduct, and found no other transgression in
him except that one. The pious one himself before he died said :
I know that there can be no other transgression found in me
except the one of the goat, that I disregarded the prohibition of
my colleagues.
R. Ishmael said : My father's family was of the citizens of
upper Galilea, and why was that locality destroyed ? Because
they pastured their young cattle in the forests and tried civil
cases by one judge ; and although their forests were near their
houses (in the immediate neighborhood, and they were pasturing
their cattle in their own forests), still, a small-sized field was
between those forests (which belonged to strangers), and they
used to pass their cattle over that field.
The rabbis taught : '' A shepherd (who raises tender cattle)
that repented, we do not compel him to sell out all his cattle at
once, but he may do so by degrees. So also is the case with a
proselyte who inherited dogs and swine ; we do not compel him
to sell out all at once. So, also, one who made a vow to buy a
176 THE BABYLONIAN TALMUD.
house or marry a woman in Palestine ; we do not compel him to
do so until he finds one fit for him. It happened once with a
woman whom her son used to annoy, that she swore that she
would marry the first one who would propose to her, and unsuit-
able persons came forward with propositions. When this came
before the sages, they declared that her intention was only for a
suitable person.
As it was said that no tender cattle must be raised (in Pales-
tine), so also was it said that no tender beasts should be raised.
R. Ishmael, however, said that hunters' dogs, cats, monkeys, and
weasels might be raised, for they are kept for the purpose of
keeping the house clean. R. Jehudah said in the name of Rabh :
We follow in Babylon the practice prevailing in Palestine regard-
ing tender cattle. Said R. Ada b. Ahba to R. Huna : But do
not you raise tender cattle? He answered : Mine are taken care
of by Haubah my wife. According to others, R. Huna said : We
follow in Babylon the practice prevailing in Palestine regarding
tender cattle since Rabh settled in Babylon (whom many followed
from Palestine and who bought or rented all the land in Baby-
lon). Rabh, Samuel, and R. Assi happened to meet at a cir-
cumcision feast, and according to others at a redemption feast.
Rabh declined to enter the house before Samuel, and Samuel
declined to enter before R. Assi, and the latter in his turn re-
fused to enter before Rabh. It was then decided that Samuel
should wait until Rabh and R. Assi had entered. (But why did
Rabh refuse to enter before Samuel, he was surely greater than
Samuel?) Rabh simply paid this courtesy to Samuel on account
of his cursing him (see Sabbath, pp. 221-222). While they were
so discussing a cat came and bit off the arm of the child, after
which Rabh lectured that it is permitted to kill a cat and pro-
hibited to keep it and that there can be no robbery in respect to
it, and that if a cat gets lost no one need return it to its owner.
If it is permitted to kill it, is it not self evident that it is pro-
hibited to keep it ? Lest one say that there is no prohibition to
kill it but it may also be kept, hence the statement. Again, if
it says that there can be no robbery in respect to it, why, then,
the statement that it need not be returned to its owner if lost ?
Said Rabhina : It means even as far as its skin is concerned. An
objection was raised from our Mishna : " R. Simeon b. Elazar said :
Dogs, cats, etc. " ? This presents no difficulty. A black one
tiay, but a white one may not. But in the case of Rabh, was it
not a black one ? It was a black descending from a white one.
TRACT BAEA KAMA (THE FIRST GATE). 177
R. A'ha b. Papa said in the name of R. Hanina b. Papa ^ the
following three things : {a) In case of a plague of the itch a fast
day with the blowing of the horn may be ordered on the Sabbath ;
(b) if the door of success is closed to one, it will not open soon ;
and {c) if one buy a house in Palestine, the deed may be written
and executed even on Sabbath. What does the statement, " if
the door of success," etc., mean? Said Mar Zutra : The grant-
ing of a diploma for a rabbi f. R. Ashi said : It means that
when one falls into misfortune he cannot soon recover. ** If one
buy, etc., the deed, etc., on Sabbath." Does it really mean that
the Sabbath may be violated in such a case ? Nay, it means as
Rabha said, that a Gentile may be told to do it, although in
ordinary cases the rabbis prohibited it on account of Sabbath-
rest ; still, in this particular case they did not. R. Samuel b.
Na'hmani said in the name of R. Jonathan : One who buys a
town in Palestine is compelled also to buy a tract of land around
it to make it accessible from all four sides, in order to promote
settlement in Palestine.
The rabbis taught : " Upon the following ten conditions did
Joshua divide the land to the settlers : {a) That one may pasture
his cattle in the forest of another ; (b) he may gather wood upon
another's field ; {c) grass may be gathered on another's field at
any place, except that of the carob-bean ; {d) a branch may be
cut off a tree at any place, except of an olive tree ; {e) the towns-
people may use the water of springs even newly opened by
strangers ; {f) nets may be spread in the Tiberian waters by
every one for fishing purposes, provided he does not stake them
so as to interfere with navigation ; [g) one may evacuate behind
a fence even of a field of saffron ; (Jt) one may walk the cross
way (opened on a field) until the second quarter of the season ;
{i) one may walk the side road when the main road is cloddy ;
(y) one who lost his way in a vineyard might raise and lower the
tree branches in trying to find it ; and, lastly, {k) a stranger who
dies in a field should be interred in the place where he dies (see
Erubin, p. 38)." Are there only ten, are there not eleven enu-
merated ? The condition that one may walk the cross-walks was
not made by Joshua but by Solomon, as we have learned in the
* Papa had many children, and the Gemara is not certain who of them was the
author of this statement.
f There were many sages who were worthy of this honor, but circumstances
prevented them from getting the diploma. The well-known Samuel was one of
them. (See Vol. XL, Tract Baba Metzia.)
12
178 THE BABYLONIAN TALMUD.
following Boraltha : When all the fruit is gathered in from the
field and the owner still permits no one to enter his field, do not
people murmur and say : What benefit does that man derive from
it and what injury would the people cause him by crossing his
field ? Of him the verse says : When you can afford to be good,
do not cause people to call you bad. Is there, then, such a verse
to be found in Scripture? There is a verse similar to it, viz.
[Proverbs, iii. 27] : " Withhold not a benefit from him who is
deserving it, when it is in the power of thy hand to do it."
But are there no more than those enumerated ? Is there not
another one, of which R. Jehudah speaks in the following
Boraitha : " R. Jehudah says : During the manuring season, etc.,
for on this condition did Joshua, etc. (supra, p. 66) ? " Again,
there are those enumerated in the following Boraitha : R. Ish-
mael the son of R. Johanan b. Broka saj-s: The court declared
the following conditions to have been made by Joshua when he
distributed the land among Israel : (a) That one may enter his
neighbor's orchard to cut off a tree branch and use it in saving
his bee-hive, paying the owner of the orchard the value thereof ;
{d) one shall empty his vessel containing wine and save therewith
his neighbor's honey (if one carrying wine and one carrying
honey met together and the vessel containing the honey broke),
and receive from him the value of the wine ; (c) one shall unload
his wood and load on his neighbor's hemp (under circumstances
similar to those stated above), and get from him the value of his
wood ? The Boraitha enumerated only those which were de-
clared to have been so unanimously, but not those that were
stated by individuals without being supported by their col-
leagues.
But did not R. Abin upon his return (from Palestine) say in
the name of R. Johanan that one more condition was made by
Joshua, namely, that whether it be a tree branching over into a
neighboring field or one standing near the boundary, he may
bring the first-fruit to Jerusalem and read the scriptural passages
[Deut. xxvi. 5] ; and if the above-enumerated ten conditions
were a Boraitha, R. Johanan, who was (not a Tana but only) an
Amora, would not contradict it ? Therefore it must be said that
the phrase, ''The rabbis taught: Ten conditions," mentioned
above does not mean that it was a Boraitha (as it usually indi-
cates), but that it was taught by R. Jehoshua b. Levi (who was
also an Amora, and R. Johanan may differ with him). R. Gebiah
of the city of Khthil taught so plainly : R. Tan'hum and R.
TRACT BABA KAMA (THE FIRST GATE). 179
Brice said in the name of the certain elder who was R. Jehoshua
b. Levi, that ten conditions did Joshua make with the settlers.
Ten enactments were enacted by Ezra, viz. : {a) That portions
of the Scripture should be read at the Saturday afternoon prayer ;
{b) on Mondays and Thursdays ; {c) the court should be open on
Mondays and Thursdays ; {d) clothes should be washed on
Thursdays (for the honor of the Sabbath) ; {e) garlic should be
eaten on the eve of Sabbath ; (/) a woman should do her baking
early in the morning (so as to have fresh bread for the poor who
should ask for it); {g) a woman should wear underwear; {h) a
woman should comb her hair before immersing (in the legal bath) ;
{i) vendors should travel from town to town and peddle their
wares unmolested. He also enacted immersion (in a legal bath)
for those who see Keri (wet-dreams). Ten things were said of
the city of Jerusalem (when it was the capital of Palestine) : {a)
Real property should always be redeemed by the seller ; {b) if a
slain person is found in the neighborhood of Jerusalem, the
ceremony of the heifer [Deut. xxi.] should not be performed ;
{c) it should never be declared a condemned town [Deut. xiii. 14] ;
{d) the laws of plagues [Levi. xiv. 35] should not apply to the
houses of Jerusalem ; {e) no beams should be permitted to pro-
trude, nor any corner boards (Erubin, p. 40) ; (/) no dumping
places for rubbish should be permitted therein ; {g) no potter's
kiln should be permitted to be constructed therein ; {h) no gar-
dens or orchards should be permitted there except those of roses,
that existed since the time of the first prophets ; (/) no hens
or cocks should be raised ; and {J) no dead body should remain
over-night in the city (but should be carried out of the city).
'^ No swine is permitted to be raised at any placed The rab-
bis taught : " During the civil war of the Maccabees, Hurkanoth
was within and Aristobulos was without the city wall, and every
day those within lowered by means of a chair a basket full of
dinars from the top of the wall to those outside, and the latter
sent them up cattle for the daily sacrifices. Among the outsiders
was an old man who was learned in Greek science, and he said
to them : So long as your enemies continue to perform the holy
service you will not subdue them. On the next day, when the
basket of dinars was lowered, they sent them up a swine. When
the swine reached the centre of the wall he fastened his feet in
the wall, and Palestine trembled for a distance of four hundred
square parsa. At that time it was declared that cursed be he
who raised swine and cursed be he who taught his sons Greek
i8o THE BABYLONIAN TALMUD.
science. Of that time it was taught (Tract Mena'hoth, p. 64^)
that the omer was brought from the gardens of Zriphin and the
two loaves from the valley of Ein Sokher."
But is, then, the study of Greek science prohibited — have we
not learned in the following Boraitha : " Rabbi said : In Palestine
there is no use for the Syriac language, which is not clear, when
there are the Holy language (pure Hebrew) and the Greek lan-
guage, both of which are very clear ; and R. Jose said : In Babylon
there is no use for the Aramean language, for there are the Holy
language and the Persian language " ? It may be said : Greek
language is one thing and Greek science is another. But is, then,
the study of Greek science prohibited — has not R. Jehudah said
in the name of Samuel : So said R. Simeon b. Gamaliel : It is
written [Lam. iii. 51] : " My eye affected my soul because of all
the daughters of my city. There were a thousand young men
in my father's house, five hundred of whom studied Scripture and
five hundred Greek science, and of all of them only two remained :
I here and my nephew in Assia " ? R. Gamaliel's house was an
exception, for its proximity to the government, as is stated in a
Boraitha : '' He who cuts his hair X^}^V imitates the ways of the
Amorites, which are prohibited [Lev. xviii. 3]. Abtulmus bar
Reuben, however, was permitted to do so, for he had stood near
the government. The house of R. Gamaliel was permitted to
study Greek science for the same reason."
"• No dog shall be kept!' etc. The rabbis taught : No one shall
raise a dog unless he is kept on a chain, or unless in a town ad-
joining the frontier, in which he is permitted to keep him without
a chain only in the night-time. There is a Boraitha : R. Eliezer
the great said : The raising of dogs is equivalent to the raising of
swine. For what purpose is this equivalence ? That the curse
said of him who raises swine should apply also to him.
R. Joseph b. Maniumi said in the name of R. Na'hman : Baby-
lon [Nahardea] is considered a city located at the frontier.
R. Dosthai of Biri lectured : It is written [Numb. x. 36] :
'* And when it rested, he said. Return, O Lord, among the myriads
of the thousands of Israel." Infer from this that the Shekhina
does not rest on Israel unless they number two myriads two
thousand. If it should happen that this number should be one
less and there should be a pregnant woman whose child when
born would complete it, and a dog should bark and cause the
woman to miscarry, it would appear that he caused the Shekhina
to withdraw from Israel.
TRACT BABA KAMA (THE FIRST GATE). i8i
It happened with a woman that entered a house to bake there,
etc. (See Sabbath, p. 124).
*' No 7tets are spread, ' ' etc. But do we go as far as that ? Have
we not learned in the following Mishna : " Dove-cots may be
located at a distance of fifty ells from a town " ? Said Abayi :
They fly for a much longer distance, but as to pecking up food
they do so only within fifty ells. But do they fly only thirty
ris?* Have we not learned in the following Boraitha that nets
should not be spread out in the neighborhood of inhabited places,
even at a distance of one hundred mil? R. Joseph said that " in-
habited " means where vineyards are laid out, Rabba said that it
means where dove-cots are kept. If so, let him say that it must
not be done for the doves themselves, in order that they should
not be caught in ? If you wish, it can be answered that the doves
are ownerless ; and if you wish, it can be answered that he him-
self is the owner of the doves.
* Seven and a half ris equalled one Palestinian mile.
CHAPTER VIII.
THE FIVE ITEMS OF PAYMENT IN CASE OF INJURY TO A HUMAN
BEING, INDEPENDENTLY OF THE CRIMINAL LIABILITY. THE
LIABILITY FOR ASSAULT WHEN NO INJURY IS SUSTAINED.
MISHNA /. : One who wounds his neighbor is liable to pay
the following five things, viz. : damage, pain, healing, loss of time,
and disgrace. " Damage." — If he blinds one's eye, cuts off his
hand, or breaks his leg, the injured person is considered as if he
were a slave sold in the market, and he is appraised at his for-
mer and his present value. " Pain." — If he burns him with a spit
or with a nail, if even only on the nail (of his hand or foot),
where it produces no wound, it is appraised how much a man his
equal would take to suffer such pain. " Healing." — If he caused
him bodily injury, he must heal him ; if pus collected by reason
of the wound, he must cause him to be healed ; if, however, not
by reason of the wound, he is free. If the wound heals up and
breaks out again, even several times, he must cause it to be
healed ; if, however, it once heals up thoroughly, he is no more
obliged to heal it. '^ Loss of time." — The injured person is con-
sidered as if he were a watchman of a pumpkin field, as he was
already paid the value of his hand or foot. The disgrace is ap-
praised with consideration of the station and rank of the one
who causes as well as of the one who suffers it.
GEMARA : Why so ? Perhaps it is to be taken literally, for
the Scripture reads [Ex. xxi. 24] : '' Eye for eye " ? This can-
not enter the mind, as we have learned in the following Bor-
aitha : Lest one say, if he bhnds one's eye or cuts off one's
hand, that the same should be done unto him, therefore it is
written [Lev. xxiv. 21] : '* And he that killeth a beast shall make
restitution /<?r it ; and he that killeth a man," etc. As in case
of a beast only the value is paid, so also in case of a man. And
lest one say. Does not the Scripture read [Numb. xxxv. 31] :
'■'■ Moreover, ye shall take no redemption for the person of a
murderer, who is guilty of death "? you may say that from this
very verse it may be inferred that no redemption money is to be
182
TRACT BABA KAMA (THE FIRST GATE). 183
taken for a murderer, but redemption money is to be taken for
one who destroys such members of the body as cannot grow on
again.
We have learned in a Boraitha : R. Simeon b. Johi said :
" Eye for eye " means its value. You say, its value. Perhaps it
means literally ? Nay, for what should be done when a blind
man blinds another, etc. — how should be fulfilled the command-
ment " eye for eye " ? And lest one say that such a case is an
exception, therefore the Scripture reads [Lev. xxiv. 22] : '' One
manner of judicial law shall ye have " ; from which is to be in-
ferred that it means a law which can be applied alike to all hu-
man cases.
In the school of R. Ishmael it was taught : The Scripture
reads [ibid., ibid. 20] : '' So should it be given* unto him " ; and
by '' given " is meant a thing which is given from hand to hand.
If so, how are the preceding words in the same verse to be ex-
plained ? '' In the manner he should give a bodily defect," etc.
(hence the word " give " is used also for such a thing as is not
given from hand to hand)? It may be explained thus: The
school of R. Ishmael deduce it from a superfluous verse, thus :
Let us see. It reads already in the preceding verse [ibid, 19] :
*^ And if a man cause a bodily defect in his neighbor ; as he hath
done, so shall it be done unto him." Why, then, the repetition
in verse 20? To indicate that it means money. But still the
above-stated objection as to the use of the word " give " in the
beginning of the verse remains ? Because at the end of the verse
the Scripture desired to use a term from which it should be de-
duced that it means money. It used the same expression also here.
The school of R. Hyya deduce it from the following: The
Scripture reads [Deut. xix. 21] : " Hand for hand " f — that means
something that can be passed from hand to hand, i.e., money.
^ The verse reads: " Yithain . . . Kain yinothen," of which the literal
translation is "should give ... so should be given" ; and the Talmud takes
it as it is, and infers from this that the expression "give " means money, which is
given from hand to hand. The preceding verse (19), however, reads: " Osso
. . . Yeosseh," the literal translation of which is, " did . . . should be done."
Leeser translates in both instances " done," according to the sense.
f The Gemara continues with similar questions : Is it not written, "foot for
foot" ; and similar answers, " There is a superfluous verse," etc., are given. It also
proceeds to cite other schools and individuals who deduce it from other Scriptural
sources, with a lengthy discussion, and finally arrives at the same conclusion, that
this law must not be understood literally. We have omitted all this, as all the ex-
planations are as complicated as the one translated in the text. And it seems to us
i84 THE BABYLONIAN TALMUD.
It happened that an ass bit off a child's arm. When the case
came before R. Papa b. Samuel he said : Go and appraise the
sum to be paid for the four items. Said Rabha to him : But we
have learned that five items are appraised ? He answered : I
mean in addition to the actual damage. Said Abayi : But this
was an ass, and an ass pays actual damage only? He then
said : Go and appraise his actual damage. But he must be ap-
praised as if he were a slave? He answered: Go and appraise
him as such. Said the child's father : I do not want to submit
to such an indignity. He was told : This money belongs to
the child (and you cannot deprive him of that). The father then
answered : When he shall grow up, I will rather pay him of my
own.
It happened that an ox lacerated the arm of a child, and the
case came before Rabha, He said : Go and appraise the actual
damage as if he were a slave. His disciple said to him : Are
not you, master, the one who said that all appraisements which
are made as of a slave are not to be collected in Babylon ? He
answered : The appraisement may be made, so that in case he
should subsequently seize some property of the defendant he will
not be compelled to return it. And Rabha in this decision fol-
lows his theory elsewhere : " Damages of an ox caused to him
by another ox, or damages of an ox caused by a man, are to be
collected in Babylon, but damages of a man caused to him by
another man, or by an ox, are not to be collected in Babylon."
Why are the latter damages not collected? Because it states
[Ex. xxii. 8] : '' Before the judges," etc., and in Babylon the
majority of the judges are not ordained, is it not the same with
damages caused by one ox to another, etc. — for they are all men-
tioned together in the Scripture, where the word " Eloim " is
written, which means ordained judges? Rabha speaks of a case
when it was caused by the tooth or foot, which are considered
vicious from the beginning, and such damage is at any rate to be
collected in Babylon.
'' Pain — if he burned him!' etc. Who is the Tana who holds
that pain without damage must be paid for ? Said Rabha : It is
Ben Azai of the following Boraitha : Rabbi said : " Burning " is
mentioned in the Scripture first. Ben Azai said : *' Bruise " is
that all those who participated in this discussion well knew that at the time the Thora
was given the law was literal in its meaning, as it was also at that time among other
nations ; but with the change of time it was positively necessary to change this law,
and if it could not be deduced from the Scripture it would not be accepted.
TRACT BABA KAMA (THE FIRST GATE). 185
mentioned first. (How is it possible that they should differ as to
which is written first and which last, when the verse [Ex. xxi. 25]
reads plainly ''burning" first and ''bruise" last?) The point
on which they differ is whether " burning " without producing a
bruise is considered pain which is to be paid for : Rabbi says that
the word " burning " could be explained to mean without a bruise,
and the word " bruise " mentioned last is only to explain that
burning without a bruise is not to be considered. Ben Azai, how-
ever, maintains that " burning" means with a bruise ; and because
" bruise " is repeated again, it may be inferred that when it hap-
pened that the burning was without a bruise it is also considered
pain which must be paid for. R. Papa opposed : On the contrary,
common sense would dictate that Rabha's statement, " Burning
is mentioned first," means to say that because usually burning is
accompanied with a bruise it is also considered pain and must be
paid for ; and Ben Azai's statement that bruise is mentioned first
means to say that " bruise " is the main point, as burning without
a bruise is not considered at all. It may also be explained that
both agree that the word " burning " means with or without a
bruise, and the point of their difference is : Given a general and a
particular which do not follow one after the other (e. g.^ in the
verse in question, where the words " wound for wound " intervene
between them). Rabbi holds to the rule " that a general includes
nothing but what is stated in the particular " does not apply to
such a case, while Ben Azai holds that it does. And lest one say :
If "burning" includes also a bruise, why, then, the repetition?
Say that the word " bruise " means to increase the payment.
" It is appraised how much one would,'' etc. When the damage
is paid for, how should the pain be appraised separately ? Said
the father of Samuel : It should be appraised how much one would
pay to have his arm, which by the decree of the government must
be amputated, severed by a drug* instead of a sword. If so, it
ought to state " give " instead of " take " ? Said R. Huna b. R.
Juhoshua : It means that the plaintiff shall take from the defend-
ant what such a man would give.
" * Healing.' — If he caused him bodily injury ^ etc. The rabbis
taught: If pus collected by reason of the wound and the wound
broke out again, he must heal him ; and he must also pay for the
loss of his time until he shall be healed again. If, however, not
* It probably means the use of a drug as an anodyne or anaesthetic during the
amputation.
i86 THE BABYLONIAN TALMUD.
by reason of the wound, he is free from both. R. Jehudah said :
Even if it was by reason of the wound, he must cure him only,
but not pay again for the loss of time.
The sages, however, say that the heahng and the loss of time
go together : When he must pay for one, he must also pay for
the other, but not for one without the other. What is the point
of their difference ? Said Rabba : I found the disciples of the
college sitting and declaring that the rabbis and R. Jehudah
differed as to whether a wound might be bandaged or not (/. e.,
whether the injured person is permitted to increase the expense
of healing by bandaging up his wound and thereby causing high
temperature, which produces pus). The rabbis hold that it may
be bandaged at the expense of the defendant as regards both
healing and loss of time. R. Jehudah, however, holds that it
may not be done. But if he does so, for healing, which is plainly
written in the Scripture {thoroughly healed), he must pay ; but for
loss of time, for which there is no additional word in the Scripture,
he must not pay. Said I to them : If we should come to the
conclusion that a wound may not be bandaged, even healing
would not have to be paid for. We must therefore say that all
agree that a wound may be bandaged ; but they differ, if bandaged
too much (and this caused high temperature and produced pus),
as to who must suffer the increased expense. R. Jehudah holds:
That as one must not bandage a wound more than necessary, he
is only obliged to pay for healing, because the Scripture insists
on it by the repetition of the word " heaHng " ; but regarding the
loss of time, about which there is no repetition in the Scripture,
he has not to pay for it. The first Tana, however (of the above-
mentioned Boraitha), holds that because he must pay for the in-
creased healing, for the reason stated above, he must also pay for
the increase in loss of time, which is equal to healing in all respects.
(Let us see :) According to the rabbis, who hold that he who is
liable for loss of time is also liable for the expense of feeling, and
he who is not liable for loss of time is not liable for the expense
of healing, wherefore the repetition of the word ''healing" in the
verse?* It is needed for what the following Boraitha states : " R.
Ishmael said : It is written [Ex. xxi. 19]: Thoroughly healed,'' from
which is to be inferred that a physician is permitted to heal (al-
though the affliction came from Providence).
* The word " healing " is repeated in the text. I.eeser translates it " thoroughly
healed "; literally, it would be, "concerning healing he should be healed."
TRACT BABA KAMA (THE FIRST GATE). 187
The rabbis taught : Whence do we know that if pus collected
by reason of the wound and the wound broke out again he must
heal him, and also pay for the loss of time ? From [ibid., ibid.] :
" Only he shall pay for his loss of time, and shall cause him to be
thoroughly healed." Lest one say that it is so also if the pus
collected not by reason of the wound, therefore it reads only.
R. Jose b. Jehudah said : The above word '^ only " excludes the
case when it collected even by reason of the wound.
The Master said : '' Lest one say," etc. If not by reason of
the wound, why was there a verse needed ? The expression in
the Boraitha " not by reason," etc., may be explained as stated
in the following Boraitha : If he disobeyed the prescription of
the physician and ate honey or other saccharine substances,
which are injurious to a wound, and a cancer formed, shall he
also be liable to heal him ? Therefore it is written only.
If the defendant should say, '' I will cure you myself," the
plaintiff may object, saying : " I fear you as a lion lying in wait."
And if the defendant should say, '* I will get you my relative, a
physician, who will cure you for nothing," he may say : '' A phy-
sician who cures for nothing is worth nothing." And if he
should offer to get a physician who lives at a distance from the
plaintiff, the latter may object, saying: ** One may get blind be-
fore seeing him." And also, conversely, if the plaintiff should
demand money to heal himself, the defendant may answer:
" You may not comply with the directions of the physician, and
thus defer the time of the healing." And if the plaintiff should
demand from the defendant to agree upon a fixed sum, the
defendant may also object, saying : '' You may take the money
and not cure yourself, and people will call me ' a vicious ox.' "
It was taught above : '' And all those are paid where actual
damage is paid." Whence do we deduce this? Said R. Zbid in
the name of Rabha : The Scripture reads [Ex. xxi. 25] : '' Wound
for wound," which means that pain is to be paid for where actual
damage is paid. But is this verse not necessary to make an un-
intentional act equal to an intentional one, and an accidental one
equal to a voluntary act ? If so, let the Scripture read " wound
by wound " — why '* wound instead of a wound " ? (See supra,
p. 54.) To infer both. R. Papa, however, said in the name of
the same : There is a repetition as to healing [ibid., 19], to add
healing where actual damage is paid. But can there be a case
where one should be Hable for all the four things where no actual
damage was done? Yea. Pain — as is stated in the Mishna:
i88 THE BABYLONIAN TALMUD.
" If he burned him with a spit or a nail," etc. Healing — as, for
instance, when he had a slight wound and it was healing up, and
from the medicines applied the skin turned white, and other
medicines had to be applied to restore the natural color. Loss
of time — when he must be confined to the house. Disgrace
— when he spat in his face.
" Loss 0/ ^zme," etc. The rabbis taught : " Loss of time. He
is considered as if he were a watchman of a pumpkin field ; and
lest one say that no justice is done in such a case, for should he
be cured he could still do some kind of manual work, or serve as
a messenger and get better compensation ? There is no injustice,
because he has already received the value of his limb."
Rabba said : If one cut off another's hand he pays him the
value thereof ; and as regards loss of time, it is appraised as if he
were a watchman of a pumpkin field. If one breaks another's
leg, he pays the value thereof ; and as regards loss of time, it is
appraised as if he were a doorkeeper. If one blinds another's eye,
he pays him the value thereof, and the loss of time is appraised
as if he were a miller. If, however, he makes him deaf, he pays
the value of his whole body, for he is not fit for any work.
Rabba questioned : In case one cut ofif another's hand, broke
his foot, blinded his eye, at intervals, and each injury was not ap-
praised separately when it occurred, and finally he made him deaf,
how shall the appraisement be made ? Shall we assume that the
appraisement for the deafness will be sufficient, as he has to pay
him for the whole body, or each of the injuries must be appraised
separately, and the difference w^ould be that he would receive
compensation for the pain and the disgrace of each injury sepa-
rately ? I do not question as regards actual damage, healing, and
loss of time, for each of which he has not to receive separately, as
he receives now compensation for the whole body as if killed, but
for the pain and disgrace suffered with each injury? Another
question : How is it if each injury was appraised, but the money
was not yet collected ? Shall we assume that because it was ap-
praised separately each must be paid ; or, because he has not yet
paid and now he has to pay for the whole body that all the pre-
vious appraisements are included therein ? Both questions remain
undecided.*
* The codifiers of the Halakhoth, as the Alphasi, Maimonides, etc., have decided
in accordance with the rule that all undecided questions found in the Talmud must
be decided rigorously ; i. <?., that in both of the above cases the defendant pays for
•ch injury separately and then for the whole body.
TRACT BABA KAMA (THE FIRST GATE). 189
Rabba questioned : If one strikes another and makes him
temporarily unfit to labor, as, for instance, when he strikes him on
the hand and it gets swollen, which will pass over, shall we assume
that because he will recover he need pay him nothing, or perhaps
for the time during which he is incapable to work he must pay?
Come and hear : ** One who strikes his father or mother, but
makes no bruise, and one who wounds his neighbor on the Day of
Atonement, is liable to all the five things." Does the first part
of this Boraitha not mean a case Hke the one questioned by you ;
t, e., that he struck them on the hand, which will soon pass over,
and still it states that he must pay all ? Nay, it may be explained
that he caused him deafness, but makes no bruise. But did not
Rabba say that one who causes deafness to his parents is to suffer
the death penalty, for deafness is impossible without a bruise,
which is a drop of blood that falls into the ear? Therefore the
Boraitha must be explained that he shaved off his hair. His hair?
It will surely grow on again, and this is Rabh's question (as there
is no difference whether the hand will recover or the hair will
grow on again?) It can be explained that the Boraitha meant
that he applied a depilatory which prevents the hair from growing
on again. Pain — because the depilatory entered the grooves (of
his head) and caused him pain. Healing — because the pain must
be allayed by medicine. Loss of time — as for instance when he
was a professional buffoon who shows different grimaces and
gesticulations, and he is prevented from doing so on account of
that. Disgrace — there can be no greater disgrace than to be
without hair.
And this matter, in which Rabba was doubtful, was certain to
Abayi in one way and to Rabha in the opposite way, as it was
taught : If he strikes him on his hand, which gets swollen, Abayi
says he must pay both the value of his hand in his trade during
the time of his sickness and also the loss of time in such labor as
he could do without the hand. Rabha, however, says he is paid
only what he loses every day by not working. It was taught :
One who cuts off the arm of his neighbor's Hebrew servant ;
Abayi says he pays the value of the arm to the servant and for
the loss of time to his master. Rabha, however, says : The whole
must be paid to the servant, who should buy therewith land, the
usufruct of which should belong to the master. It is certain that
where the injury is wholly to the slave, e.g., where he split his
ear or his nostrils (which does not prevent him from work), that
all that he gets belongs to him ; but where the injury is of such s
190 THE BABYLONIAN TALMUD.
nature that he cannot do any work, the difference between Abayi
and Rabha concerning the loss of time remains.
''Disgrace,'' etc. Our Mishna is in accordance with R.
Simeon of the following Boraitha only: " All those who sustain
injury are looked upon as if they were independent men that
became poor, as all Israelites are the children of Abraham,
Isaac, and Jacob. Such is the dictum of R. Meir. R. Jehudah
says: It is according to his rank and station. R. Simeon, how-
ever, says : The rich ones are looked upon as if they were inde-
pendent men who became poor; the poor ones, as if they were
the very poorest class." Hence our Mishna, which states that
it is according to the station of the party, is not in accordance
with R. Meir, who makes no difference, nor according to R.
Jehudah, who says further on that a blind person gets nothing
for being disgraced, but according to R. Simeon only (who con-
siders rank and station).
According to whom is the following Boraitha: " The rabbis
taught : If he intended to disgrace a small one and disgraced a
big one, he pays the big one the amount he would have to pay
the small one. If he intended to disgrace a slave and he dis-
graced a freeman, he pays to the freeman the amount he would
have to pay to the slave " ? It seems to be in accordance with
neither of the Tanaim mentioned above. [At the first glance,
the Boraitha is to be explained that " small one" means one
who is poor in estate, and " big one " means one who is rich in
estate, and therefore it is not in accordance with R. Meir, to
whom all are equal, nor according to R. Jehudah's theory, who
holds no disgrace is paid for to slaves, and, finally, not accord-
ing to R. Simeon, who holds that no disgrace is paid for unless
it was caused to him who was intended. Why so ? Because
R. Simeon equals it to murder, of which it is written [Deut.
xix. ii]: " And he lie in wait for ///;;/," etc. ; and we find also,
as regards disgrace [ibid. xxv. ii]: "And piittetJi forth her
hand" (which means intentionally), hence in both intention is
required.] It may be explained even in accordance with R.
Meir, and the terms " small " and " big" should be taken liter-
ally: a grown person and a minor. But is, then, a minor paid
for disgrace ? Yea, as R. Papa said elsewhere, if the minor is
of such understanding that he feels ashamed when one says to
him, " Be ashamed of yourself," disgrace is paid for to him.
MISHNA //. : One who causes disgrace to a nude, blind, or
sleeping person is liable ; if, however, one causes disgrace when
TRACT BABA KAMA (THE FIRST GATE). 191
asleep, he is free. If one falls down from a roof and causes
damage and disgrace, he is liable for the damage but not for the
disgrace, as the latter requires intention.
GEMARA: The rabbis taught: " If he disgrace a nude per-
son, he is liable; but still, the disgrace caused to a nude person
is not equal to that caused to a dressed one. If he disgrace him
in a bath-house, he is liable; but still, such disgrace is not equal
to that caused to one in the market." The Master said: " If
he causes disgrace to a nude person," etc. If he walks nude in
the street — is, then, such a person capable of being ashamed ?
Said R. Papa : As for instance when a wind rolled up his clothes
somewhat, and the defendant rolled them up more and thereby
caused him shame. " In a bath-house." Is, then, a bath-house
a place for claiming for disgrace ? Said R. Papa : It means that
he caused him shame while on the banks of a river.
R. Aba b. Mamel questioned : If one causes shame to a sleep-
ing person who subsequently dies while asleep, what is the law
(as to the payment for shame) ? On what point is the question ?
Said R. Zbid: It is thus: Is shame paid for, for hurting one's
feelings, and here, when he dies while sleeping, his feelings are
not hurt, or it is only a fine for the indignity of one in the pres-
ence of others, and here was such indignity ? Come and hear:
" R. Meir says : A deaf-mute, and a minor, disgrace is paid for to
them, but not to an insane person." Now, then, if it is a fine
for the indignity, it is correct that a minor be also paid, but if
for hurting the feelings, has a minor, then, feelings of shame ?
But even if it is for indignity, why should an insane person not
be paid for ? Insane ? is there any greater shame than this ?
R. Papa says: The point of the question is thus: Is the
reason because of the hurting of his own feelings — here, when
he dies when sleeping, there was none — or because of the feel-
ings of the family ? Come and hear, etc. (the Boraitha just
quoted). Now, then, if for the sake of the family it is correct
that it states also a minor, and if for his own, is, then, a minor
capable of feeling shame ? But even if it is because of his fam-
ily, it is not correct that an insane person shall not be paid for ?
There is no greater shame for a family than the insanity of one
of its members. Be this as it may, let it be inferred that the
reason is because of his family; for if because of his own feel-
ings, the minor stands in the way ? Said R. Papa : A minor is
sometimes paid for shame if he is of such understanding that he
feels ashamed when one says to him: " Be ashamed of yourr
192 THE BABYLONIAN TALMUD.
self! " We have also so learned plainly in a Boraitha: " Rabbi
says r A deaf-mute has, an insane person has not, but a minor
sometimes has and sometimes has not, feelings of shame, as
explained above."
" One who disgraces a blind oney" etc. Our Mishna is not in
accordance with R. Jehudah of the following Boraitha, who
says: "A blind person has no feelings of shame; so also he
used to free him from banishment, stripes, and death punish-
ment by the court." What is the reason of R. Jehudah's the-
ory ? He deduces it from the analogy of expression " the eye,"
which is used in speaking of disgracing a person and also in
speaking of collusive witnesses: as in the case of collusive wit-
nesses blind persons are excluded (for if they cannot see they
cannot testify). And regarding banishment, as it is stated in
the following Boraitha : It is written [Numb. xxxv. 23]: " With-
out seeing him " (which is to be explained that here he has not
seen, but he is capable of seeing), which excludes a blind person
(who can never see). Such is the dictum of R. Jehudah. R.
Meir says: (On the contrary,) it includes a blind person. What
is the reason of R. Jehudah ? It is written [Deut. xix. 5] :
" And he that goeth into the forest with his neighbor to hew
wood." Should we assume that this includes even a blind one ?
Therefore the Scripture says, '* without seeing him," to exclude
him. And R. Meir ? (He may explain it thus :) The Scripture
reads " without seeing him," to exclude something, and it is
written [ibid., ibid. 4], " without knowledge," which also means
to exclude something; and there is a rule that where there is
one exclusion after another it means to include. Hence it in-
cludes the blind. R. Jehudah, however, maintains that " with-
out knowledge" means to exclude the one who does it inten-
tionally (who is guilty of a crime). ' ' From death by the court. ' '
It is deduced by analogy of the expression " murderer" used
here and in case of banishment. (In case of one killing a person
the expression " murderer" is used [Numb. xxxv. 31], and so
also in case of banishment.) " From stripes." It is deduced
by the analogy of the expression " Rosha " [ibid, xxv.] (the
wicked, the guilty one) used here, and in case of death by the
court [Numb. xxxv. 31].
We have learned in another Boraitha: *' R. Jehudah says:
A blind person has no sense of shame. He also relieved him
from the performance of all the commandments contained in the
Scripture." Said R. Shesheth b. R. Idi : What is the reason of
TRACT T^ABA KAMA (THE FIRST GATE). 193
his statement? It is written [Deut. vi. i] : "And this is the
commandment, with the statutes and the ordinances" — from
which is to be inferred that only those who can be ordained as
judges have the obligation of observing the commandments, but
not those who cannot be ordained (and as a blind person can-
not be ordained a judge, he is exempt).
R. Joseph said: First I used to say: If there should come
one and tell me that the Halakha prevails according to R. Jehu-
dah, who says that a blind person is exempt from the perform-
ance of commandments, I shall make a feast for the rabbis,
because I, who am under no obligation to do so, still do perform
them ; but since I heard of what R. Hanina said, that there is
more reward for him who performs a commandment which he
has an obligation to than for him who performs it without such
obligation, I changed my mind, and I say that I shall make a
feast if one should come and tell me that the Halakha does not
prevail according to R. Jehudah; for if I am required to per-
form the commandment, the reward will be greater.
MISHNA ///. : The law is more rigorous in regard to a man
than in regard to an ox in this respect, that a man pays the five
certain items, and also the v^alue of the aborted children, while
an ox pays only for actual damage and is free also from paying
for the aborted children. One who assaults his father or mother,
but does not bruise them, and one who wounds another on the
Day of Atonement, is liable to pay all the above items. One
who wounds a Hebrew servant is liable to pay all, but for loss
of time when he is his own. One who wounds a heathen slave
of another is liable to pay all. R. Jehudah says : There is no
disgrace to slaves. A deaf-mute, an insane person, and a minor,
one who meets with them is in a bad position, for the one who
wounds them is liable, while if they do so to others they are
free. The same is the case with a slave and a (married) woman,
with the difference that they must pay when they become inde-
pendent ; namely, when the woman is divorced and the slave is
liberated. If one, however, assaults his father or mother and
bruises them, or, on the Sabbath, any person, he is free from
payment of the above-enumerated items, for he is guilty of a
capital punishment. One who wounds his own heathen slave is
free from everything.
GEMARA: R. Elazar questioned Rabh : One who wounds
the minor daughter of another, to whom is the compensation to
be paid ? Shall we assume that as the Scripture granted the
13
194 THE BABYLONIAN TALMUD.
income of a minor daughter to her father, the same is the case
with the compensation for a wound inflicted upon her, for her
value is diminished thereby; or perhaps the Scripture granted
him only the income so far as she is under his control; for in-
stance, if he wanted to marry her to one afflicted with scabies
he could do so, but as to wounding, if he himself wanted to
wound her he must not do so; hence it is an income which is
not under his control, and therefore he does not acquire title to
it ? He answered : The Scripture granted him only the income
first stated.
He objected to him from our Mishna: " But for the loss of
time when he is his own ? " (Hence we see that the loss of time
is considered ; and as the income from the labor of a minor
daughter belongs to her father, he shall at least collect for the
loss of time ?) Said Abayi: Rabh concedes, as far as this is
concerned, that her father gets it up to the age when she be-
comes vigorous. He objected again from the following: " One
who wounds his grown son, he pays him at once; if he wounds
his minor son, he makes an investment with the money he has
to pay; if he wounds his minor daughter, he is free; and not
only he, but even if others have done so to her, the father gets
the payment ? " He answered: This also has reference to loss of
time only.
There is a contradiction to the above statement that in case
of a grown son he pays him at once, from the following: One
who wounds another's children — if they are grown persons, he
pays them at once ; if they are minors, he makes an investment
with the money due ; if his own children, he is free ? This pre-
sents no difficulty: The one case treats of where he provides
their board, and the other case treats of where he does not.
Now, let us see: You interpret the first Boraitha that it treats
of where he does not provide their board ; then the last part of
same: " If one wounds his minor daughter, he is free, and if
others do so to her the payment belongs to him," also treats of
where he does not provide her with board — why, then, should
the payment belong to him ? must she not pay for her board ?
As Rabha b. R. Ula explained elsewhere that it refers to that
part which is in excess of what she needs for her board, so also
is it to be explained here, that it relates to the excess. If so,
then the second Boraitha treats of where the father does provide
their board — why should they get the payment ? does it not
belong to the father ? It may be said that one is particular only
TRACT BABA KAMA (THE FIRST GATE). 195
about money of his own pocket, but about an income that comes
from the outside one is not particular.
But is, then, a found article not an outside income, and still
one is particular about it ? An outside income which comes
without any pain to the body, one is particular about; but an
income which comes by reason of a wound, where she suffers
bodily pain, is different. But does not the Boraitha state that
if others wounded her they must pay to her father ? It may be
said that, as the Boraitha was interpreted that the children were
not on his board, it is to show that the man is so penurious that
he does not even provide board for his children, and such a man
is certainly particular even about such an income; but in our
case, where it is explained that they are on his board, it may be
assumed that he is not particular about such an income.
What kind of investment (mentioned in the above Boraitha)
should he make? R. Hisda said: He should buy with the
money the Holy Scrolls. Rabba b. R. Huna said: (An article
which brings benefit, e.g.^ a date-tree, the benefit of the fruit of
which should belong to the minor.
And Resh Lakish is also of the opinion that the Scripture
granted to the father only the benefit derived from the labor of
a minor daughter. R. Johanan, however, says: Even the money
gotten for a scratch. A scratch ? How can this enter the
mind ? Even R. Elazar questioned only in case of a wound,
because her value was reduced ; but in case of a scratch, which
does not reduce her value, he did not question at all ? Said R.
Jose b. Hanina: The case is that the scratch was on the face,
and in such a case it causes a reduction in her value.
** A heathen slave ,* etc. What is the reason of R. Jehudah's
theory? Because it is written [Deut. xxv. 11]: "When men
strive together, one with his brother^'' * which signifies one with
whom there can be a fraternity, excluding a slave. The rabbis,
however, maintain that the word "brother" can also mean a
slave, as there is a fraternity with a slave, because he is obliged
to perform many commandments which an Israelite is obliged
to perform. Now then, according to R. Jehudah, who is par-
ticular about the word " brother" mentioned in the Scripture,
let witnesses who were found collusive in their testimony against
a slave (to convict him of a crime punishable by death) not be
* The text reads " Ish v'ochiv," which literally means "a man and his brother.'
Leeser, however, translates it according to the sense, " one with the other."
196 THE BABYLONIAN TALMUD.
put to death, for it is written [ibid. xix. 19]: " Then shall ye do
unto him as he had purposed to do unto his brother'' f Said
Rabha in the name of R. Shesheth: The verse reads [ibid.,
ibid.]: "And thou shalt put away the evil from the midst of
thee," which means under any circumstances.
Now, according to the rabbis, who maintain that a slave is
also considered a " brother," let a slave be qualified to become
a king ? According to such a theory the same question could
be put as regards a proselyte (who according to all is named
brother, and nevertheless he is not qualified) ? But both are
excluded by the following verse [ibid. xvii. 15]: " From the
midst of thy brethren shalt thou set a king over thee," which
signifies from the best qualified of your brethren. The question
can, however, be put thus : Let, according to the rabbis, a slave
be eligible as a witness, for it is written [ibid. xix. 18]: " He
had testified a falsehood against his brother " ? Said Ula: Even
as regards witnesses he must be excluded by the following ^/br-
tiori argument, thus : An Israelitish woman is not eligible as a
witness — a slave, who is not an Israelite and cannot even inter-
marry with an Israelitish woman, is it not logical that he should
not be eligible as a witness ? And if you should say that a slave
has the preference, for he is circumcised, which is not the case
with a woman, the case of a minor can prove it, who is circum-
cised, and still he is ineligible as a witness ; and if you should
say that a minor has no obligation of performing commandments,
while a slave has, the case of the woman can be cited who has
such obligation and still she is ineligible as a witness, and the
former argument will be reinstated ; from which it is to be seen
that in some respects one has preference and in others the other
has preference. In one thing, however, they are all equal, in
that they are not fit to perform all the commandments to which
an Israelite is subject and they are eligible as witnesses; the
same is the case with a slave, who is not fit to perform all the
commandments and is also eligible as a witness.
** A deaf-mute,*' etc. The mother of R. Samuel b. Aba of
Hagrunia married R. Aba, and she transferred her estates to her
son R. Samuel. When she died, he went before R. Jeremiah
b. Aba and he installed him in the possession of the estates.
His stepfather went and told this to R. Hoshiya, who in his
turn told it to R. Jehudah, and the latter said to him: So said
Samuel : A woman who sells her estates to some one with a con-
dition that her husband shall have the fruition of same during
TRACT BABA KAMA (THE FIRST GATE). 197
his lifetime, and thereafter she dies, her husband can recover
the estates from the buyer (for he inherits from his wife, and
because he had the usufruct of the estates he is considered as if
he were the first buyer). When this was stated before R. Jere-
miah, he said : I, however, know of a Mishna (Third Gate, Chap.
VIII.) which states: " One who transfers his estates to his son,
after his decease ... If the son sell them, the buyer has
nothing in them until the father dies." We see, then, that if
the father die the buyer acquires title in them, and even in case
the son dies when the father is still alive, in which case they
never came into the possession of the son. As R. Simeon b.
Lakish said, there is no difference whether the son dies during
the lifetime of the father or the father dies during the lifetime
of the son, in both of which cases they never came into the pos-
session of the son, the buyer nevertheless acquires title.*
When the answer of R. Jeremiah was repeated before R.
Jehudah, he said: So said Samuel: This is not equal to the case
of our Mishna. Why so? Said Abayi: On account of the
enactment of Usha, which is in accordance with Samuel's state-
ment. (See Khethuboth, p. 20.) Said R. Idi b. Abin : We have
so also learned in the following Boraitha: If witnesses say: ** We
testify that that person divorced his wife and paid her the
amount of her marriage contract," and it was found that she
was still with him, and cohabited with him, and those witnesses
were found collusive, they must not pay the full amount of the
marriage contract (because she may die before her husband and
nothing will be collected, but it must be appraised how much
she would get in cash now if she should transfer her right in the
marriage contract, so that if she should die before her husband
the buyer would lose), but only the benefit of the same; and if
she dies, her husband inherits also this from her. Now then,
if the enactment of Usha should be of no effect, why should her
husband inherit the amount of her marriage contract — let her be
able to sell her right in the marriage contract and collect the full
amount of it? Said Abayi: What comparison is this: If the
enactment was made regarding a woman's estate which she sells
reserving the benefit, should the same enactment apply to guar-
anteed estates ?
Said Abayi: As we have come to speak about benefit, let
* Here follows a discussion as to whether the usufruct is equivalent to the prin-
cipal, which is omitted here, but will be translated in its proper place.
198 THE BABYLONIAN TALMUD.
us say something regarding it : The above-mentioned benefit
belongs to the wife; for if it should belong to the husband, let
the collusive witnesses say to her: What loss did you sustain —
if you had sold them, the benefit would anyhow have belonged
not to you, but to your husband ? Said R. Shalman: It does
not matter: This benefit, although it would go to the husband,
would be a benefit for her, as it would be used to increase the
luxury of the household.
Rabha said: The Halakha prevails that the benefit in case of
a woman who sells her right in the marriage contract belongs to
herself; and if she bought estates therewith, her husband has
nothing even in their income. Why so ? The rabbis enacted
that he should have the direct income of his wife's estates
belonging to her before marriage, but not the income of her
estates which she acquired after her marriage in which her
husband has no share (e.g.^ estates bought with the money paid
her for disgrace caused to her, etc.). When R. Papa and R.
Huna returned from Rabh's college, they questioned: On
account of the enactment made in Usha, it was taught of a
slave and a woman, one who meets with them is in a bad
position, etc. Now, if the enactment of Usha should be of
no effect, why should the compensation for her wound be
paid to her husband, let it be paid to her and let her buy estates
the usufruct of which shall belong to her husband ? (What
question is this ?) Even according to the theory that the enact-
ment of Usha is of effect and she cannot sell the right in her
marriage contract absolutely, let her sell, however, her estates
of which her husband has the fruition for any benefit she could
derive and pay to him whom she wounded ? We must then say
that she does not possess any. The same is the case here.
MISHNA IV. \ If one blow* into the ear of another, he
pays one sela (as a fine for the disgrace he caused him). R.
Jehudah, however, in the name of R. Jose the Galilean says,
one manah. If he strike him with the palm of his hand on the
cheek, he pays two hundred zuz ; if, however, with the back of
his hand, he pays four hundred. If he pull or cut his ear, or
pull his hair, or spit in such a manner that the spittle fall on
him, or strip him of his garment, or he bare the head of a woman
in the market, four hundred zuz is to be paid. This is the rule:
* According to others, it means " boxing the ear." We, however, have translated
it in accordance with our method, after the second interpretation of Rashi.
TRACT BABA KAMA (THE FIRST GATE). 199
Rank and station of the parties are taken into consideration.
R. Aqiba, however, says: Even the poorest of Israel must be
considered as if they were independent men who had lost their
estates, for they are the descendants of Abraham, Isaac, and
Jacob. And it happened that one bared the head of a woman
in the market, and when the case came before R. Aqiba he im-
posed a fine of four hundred zuz. Said the defendant to him:
** Grant me time for payment," and he did so. The defendant
then watched her when she was standing at the gate of her
courtyard, and broke her pitcher containing oil of the value of
one issar: she bared her head, dipped her hand in the oil, and
rubbed it into her hair in the presence of witnesses. The de-
fendant then brought the witnesses before R. Aqiba and said :
Rabbi, do you command me to pay this woman four hundred
zuz ? R. Aqiba answered: Your pleading is of no avail, for one
who wounds himself, although it is considered a crime, he does
not pay a fine, but if others wound him he must be paid. The
same is the case with one who cuts off his plants; although it is
unlawful, still he pays nothing, but if others do so (to the same
property) it must be paid for.
GEMARA: The schoolmen propounded a question: The
manah stated in the Mishna, does it mean a manah of the city
of Zur,* which contains one hundred zuz, or does it mean the
manah of the country, which is one-eighth part of it ? Come
and hear: ** It happened that a man blew into the ear of another
and the case came before R. Jehudah the Second, and he said:
I saw you doing it, and I hold with R. Jose the Galilean ; and
there are also other witnesses who saw you doing it, therefore
go and pay him a manah of the city of Zur." f There was a
man who did so to his neighbor, and when the case came before
R. Tubiah b. Mathna he sent a message to R. Jose, questioning
him whether the sela mentioned in the Mishna meant a sela of
Zur or one of the country, which is only of the value of one-half
of a zuz, and he answered: This is to be inferred from the end
of Mishna I., Chap. IV., where it states " the first two a golden
dinar"; and if the Mishna treated of a sela of the country, it
would state one more case, viz.: " If the ox still gore another
ox worth two hundred zuz, the owner of the ox and the owner
* One manah of Zur is 25 selas, each sela containing four zuz. A country manah
is one-eighth of a manah of Zur, and also contains 25 selas, so that a country sela is
one-half of a zuz.
f From here to end of paragraph is transferred from Chap. IV., Text, 363.
200 THE BABYLONIAN TALMUD.
oi the first ox that was injured take each twelve dinars and one
sela." Said R. Tubiah: Should the Tana enumerate all the
possible cases as a peddler does his wares ? How was the case
decided ? It was decided from the statement of Rabh, which
R. Jehudah said in his name, that all the moneys mentioned in
the Scripture mean those of Zur, and those mentioned by the
rabbis mean those of the country. (Hence one-half of a zuz.)
Said the plaintiff: As I have to get only one-half of a zuz, let it
be for the poor, as I do not want it. Thereafter he said again :
Give it to me and I will use it for improving my health. Said
R. Joseph to him: The poor have already acquired title to it,
and although they were not here, we the treasurers of charities
are considered the hand of the poor.
Hanan the Bisha (the bad) blew into the ear of another.
When the case came before R. Huna, he said: Go and pay him
one-half of a zuz. Hanan had in his possession a bad zuz that he
could not pass, and he tendered it to the plaintiff, asking for
one-half zuz change. When he refused, he blew in his ear again,
and paid him the whole zuz.
(It is said above, ** I saw you doing it.") May a witness be
a judge in the same case ? Have we not learned in a Boraitha:
If the Sanhedrin saw one murdering another, they shall be
divided; viz., some of them shall appear as witnesses and the
others shall perform the function of judges. Such is the dictum
of R. Tarphon. R. Aqiba, however, said : As they are all wit-
nesses, none of them can perform the function of judges ? Did
R. Aqiba indeed say so ? Have we not learned in another
Boraitha: It is written [Ex. xxi. i8]: "And if men strive
together, and one smite the other with a stone, or with the
fist." Said Simeon the Timani : As in the case of the fist it
must be investigated whether the blow of the fist was of such
violence as to make him ill, confined to his bed, the same is the
case with the stone; but if the stone was lost from the hand of
the witnesses, no judgment can be granted. Said R. Aqiba to
him: " Did he strike him in the presence of the court, so that
they could testify how much, for what, and at what place he
struck him ; and secondly, in case one pushes his neighbor from
the top of the roof of a house or palace and he dies, are, then,
the court obliged to go and investigate if the height was such as
to kill a man, or shall the house or palace be brought before the
Beth Din ? And if you should say, ' Yea,' how should be the
case if in the meantime the palace were destroyed — shall we
TRACT BABA KAMA (THE FIRST GATE). 201
wait until it be rebuilt of the same height, so that it can be
measured ? Therefore we must assume that as in the case of
the fist (which is always there) it depends upon the testimony of
the witnesses whether the blow was of such violence, etc., the
same is the case with the stone, except where the stone was lost
before the witnesses have seen it." We see, then, that R.
Aqiba said that the court can testify how the striking was,
hence that a witness can act as judge ? He said it only to R.
Simeon: According to your theory, should the court, etc., but
he himself does not allow a witness to be a judge under any
circumstances.
The rabbis taught : " A non-vicious ox who killed a man and
has also caused damages to another, he must be tried for the
crime but not for the damages (because a non-vicious ox pays
for damages from his body, and in this case his body is to be
stoned); a vicious one, however, who did the same is tried first
for the damages and subsequently for the crime. If, however,
he was sentenced to death first, he cannot be tried again for
the damages." What is the reason ? Why shall he not be tried
again for the damages. (In such a case the payment is to be
made from the estates of the owner ?) Said Rabha : I found the
disciples of the college sitting and discussing about this case,
and they came to the conclusion that the Boraitha is in accord-
ance with R. Simeon the Timani's theory, that in all cases the
appraisement of the court is necessary also concerning damages ;
and in our case, as it was already decided that the ox must be
killed, the execution must not be postponed for the purpose of
appraisement. Said I to them : The Boraitha can be explained
also in accordance with R. Aqiba, namely, that the case was
that the owner of the ox ran away (and he cannot be tried when
he is not present). If so, even if the ox was not first tried for
the crime, can a civil case be tried in the absence of the parties ?
The case was that he ran away after the witnesses testified in his
presence. But if he ran away, from whom shall the payment be
collected ? If he was not yet tried for the crime, the appraise-
ment of the damages can be made and the ox may be hired to
do work with him until the compensation for the hire equals the
amount of the payment, and subsequently he shall be tried for
the crime. If so, let also a non-vicious ox be tried for the dam-
ages and then hired until the hire shall equal the amount of
damages, and thereafter he shall be tried for the crime ? Said
R. Mari bar Kahana : From the fact that it does not state so,
2oa THE BABYLONIAN TALMUD.
it may be inferred that the hire paid for an ox is not considered
as its body, but as the estates of the owner.
The schoolmen propounded a question : Is investigation (be-
fore appraisement) necessary in case of damages, or not ? Shall
we assume that only in case of a crime it must be investigated
whether the blow was enough to kill, but in case of damages he
must pay at any rate, or there is no difference and investigation
must be had ? Come and hear: It is stated above (p. ii8), " As
a pit of ten spans depth, which is capable of killing, so also other
things, etc. If, however, it was less deep, he is liable only for
damages but not for killing." Is it not to be assumed that it
means from the bottom to the top— namely, ten spans deep is
for killing, less than ten is for damages ? Hence we see that
investigation is not necessary, as it must be paid even if it was
only two or three spans ? Nay, it means from the top to the
bottom — namely from one up, but not including ten, is investi-
gated for damages, but it must be investigated how many spans
deep are necessary for such damage (but if it was ten or more,
then we follow the tradition that from ten up it kills).
Come and hear: Concerning the five certain things it must
be investigated, appraised, and collected at once, including heal-
ing and loss of time, which are also previously appraised as how
long it will take before he will be cured. If, however, it was
not so — for instance, during that time he grew worse, or, on the
contrary, he was cured in a shorter time, it does not matter, and
the appraisement remains the same. Infer from this that there
is appraisement in damages. (From this the question of the
above schoolmen cannot be decided yet, as) they were not in
doubt that appraisement was necessary of the time needed for
the injured person to be cured, etc., but they still doubted if
the article which caused the damage must be investigated
whether it was capable of causing such damage or not. Come
and hear the decision of Simeon the Timani stated above, from
which is to be inferred that investigation is necessary also for
damages. And so it is.
The Master said: If he was examined, and it was concluded
that the healing must take a certain time, and he was healed
before the time, he gets nevertheless the full amount. This will
be a support to Rabha, who said that he who is examined, and
it is concluded that his sickness will continue the whole day, and
he becomes cured in half a day, so that the other half day he is
doing some work, he is nevertheless paid for the full day, as it
TRACT BABA KAMA (THE FIRST GATE). 203
is considered that his sickness was shortened by the mercy of
Heaven.
'' If he spat in such a manner,'" etc. Said R. Papa: On
those parts of his body which were not covered, but not if the
spittle fell on his garments. But let it be considered as if he
caused him shame by words ? In the West it was said in the
name of R. Jose b. Abin that from the above explanation of the
Mishna by R. Papa is to be inferred that if one disgraces another
by mere words he is free.
" Rank and station,'' etc. The schoolmen propounded a
question : The statement of the first Tana, shall it be construed
leniently or rigorously ? Leniently, if he was a poor person he
must not be paid so much as if he were a rich one, or rigorously,
that if he was of higher station he is paid more for the disgrace
caused him ? Come and hear R. Aqiba's statement in the same
Mishna, that even the poorest man must be considered as an
independent man, etc., from which it is seen that the first Tana
meant leniently. And so it is.
" It happened that one bared,'' etc. Do we, then, allow time
for payment in such a case ? Did not R. Hanina say that in
cases of wounding no time is given ? Yea. We do not allow
time in cases of pecuniary damage, but in cases of disgrace,
where there is no pecuniary damage, time is allowed.
*' He watched her when she was standiyig," etc. But the
Boraitha states that R. Aqiba said to him : You dived into deep
waters and brought up a fragment of a clay vessel: one may
wound himself, but if others wound him they must pay (and in
our Mishna it states that a man must not do so) ? Said Rabha:
This presents no difficulty. The Boraitha speaks of a wound
which is not allowed, while the Mishna speaks of disgrace, which
one is allowed to cause to himself.
But the Mishna speaks of disgrace only, and still R. Aqiba
said, ** Although he is not allowed," etc.? R. Aqiba meant to
say thus: It is not only in case of disgrace, which one may do
to himself, and still if caused by another he is responsible; but
even in case of wounding, in which he is not allowed to do it to
himself, and after he himself did it others came and caused him
other wounds, they are nevertheless responsible.
** One who cut off his plants," etc. Rabba bar bar Hana
taught in the presence of Rabh: " If the plaintiff says, ' You
killed my ox,' or, ' You cut off my plants,' and the defendant
answer, * You ordered me to do so,' he is free." Said Rabh to
304 THE BABYLONIAN TALMUD.
him : If so, you would not leave life to the people — must he
then be believed that he was ordered to do so ? Rabba bar bar
Hana answered: Then ignore it. Said Rabh to him: Why
should you not explain your Boraitha that it treats of an ox
which was sentenced to be killed, or of a tree which the court
ordered to be cut off ? He rejoined : If so, then what is the
complaint of the plaintiff ? The complaint is thus : I wanted to
do this commandment myself, as we have learned in the follow-
ing Boraitha: It is written [Lev. xvii. 13]: " Then shall he pour
out the flood thereof, and cover it up," etc. This means that
the covering up must be done by the one who pours it out (if
he desires to do so); and it happened of one who slaughtered
a fowl and another anticipated him and covered its blood with
dust, that R. Gamaliel made him pay ten golden zuz. (Hence
one has the right to complain for a meritorious deed which he
was prevented from doing.)
Rabh said: A tree that contains a kabh of fruit is prohibited
to be cut off. Said Rabhina: If, however, the tree be worth
more in wood, it may be done. We have learned so also in the
following Boraitha. It is written [Deut. xx. 20]: " Only those
trees of which thou knowest " — that means, a tree which bears
fruit; "that they are not fruit-trees"* — that means, a wild
tree. Now as, according to this explanation, every tree which
is needed may be cut off, why, then, the words " that they are
not fruit-trees " ? To teach that if there are both wild trees and
fruit-trees, the wild trees have the preference to be cut off. But
lest one say that even when the fruit-tree is worth more in being
used for a beam in a building than for its fruit, the wild tree
must be cut off first, therefore it is written " only."
The gardener of Samuel brought him dates in which Samuel
tasted a taste of wine, and to the question why it was so the
gardener answered that the dates were growing in the vineyard,
and Samuel said : If they absorb so much sap of the vines,
uproot them and bring me their roots to-morrow.
R. Hisda, when he noticed young date-trees in his vineyard,
told the gardener to uproot them, saying: Vines are valuable
and date-trees may be bought from their income, while date-
* The Talmud divides this verse into two parts, which in reality reads well as it
is, and Rashi tried to explain it that because there are a few superfluous words it
ought to read " only a tree that bears no fruit," why, then, the words, "which thou
knowest " ? And this is the reason why the Talmud infers from this that even a fruit-
tree may be cut off when needed.
TRACT BABA KAMA (THE FIRST GATE). 205
trees arc only of slight value, and from their income vines can-
not be bought.
MISHNA V. : All that which is said regarding payment for
disgrace is only for the satisfaction of the pecuniary damage,
but the hurt feelings of the disgraced are not forgiven, unless
he prays and secures forgiveness from the plaintiff, as it is writ-
ten [Gen. XX. 7]: " And now restore the man's wife," etc. And
whence is it deduced that if the defendant does not forgive he
is considered cruel? From [ibid., ibid. 17]: "And Abraham
prayed unto God, and God healed Abimelech," etc. If one
says to another: " Blind my eye, cut off my hand, break my
foot," he (the defendant) is liable, even if he told him so on the
condition that he should be free. If he told him: " Tear my
garment, break my pitcher," he is liable. If, however, he told
him so on the condition that he should be free, he is so. If one
says to another to do such damage to a third person, even on
condition that he should be free, the defendant is liable whether
it be personal injuries or injuries to property.
GEMARA : The rabbis taught : All that which was said con-
cerning disgrace is only for the civil court, as to how much the
plaintiff should receive, but there can be no satisfaction for the
injury to the feelings, for which, if he would even offer all the
best rams of the world, they would not atone for it, unless he
prays the plaintiff for forgiveness, as the verse quoted in the
Mishna reads farther on : " For he is a prophet, and he will pray
for thee." For he is a prophet! Must, then, only a prophet's
wife be restored, and not that of an ordinary person ? Said R.
Simeon b. Na'hmani in the name of R. Jonathan: Read thus:
Restore the man's wife; (and) because he is a prophet, he will
pray for thee — which means that another's wife must be re-
stored. And your claim [ibid., ibid. 4 and 5]: "Lord, wilt
thou then slay also a righteous nation ? Said he not unto
me. She is my sister?" etc., is of no avail; for if a stranger
comes to a city, he is usually questioned only what he would
eat or drink, but not who is his wife or relatives, as your
habit is; and because he was a prophet and he knew what
you were going to ask him, therefore he and Sarah were com-
pelled to say so. Infer from this that one is punished even
when he commits a crime through ignorance, because he ought
to learn and know.
It is written [ibid., ibid. 18]: " Every womb." Said the
disciple of R. Janai, even the hen of Abimelech's household did
2o6 THE BABYLONIAN TALMUD.
not lay its eggs. Said Rabha to Rabba bar Mari:* Whence is
the following saying of the rabbis deduced: He who prays in
behalf of his neighbor for a certain thing which he himself needs,
he is answered first? He answered: From the following verse
[Job, xlii. lo]: " And the Lord brought back the captivity of
Job, when he prayed in behalf of his friends." He said to him :
You deduce it from this, and I deduce it from the following
verse [Gen. xx. 17]: "And Abraham prayed unto God, and
God healed Abimelech, and his wife, and his maid-servants,"
etc. ; and immediately thereafter it is written [ibid. xxi. i] :
** And the Lord visited Sarah as he had said," etc., which
means, as Abraham prayed in behalf of Abimelech.
Said Rabha to Rabba bar Mari: Whence do we deduce the
following people's saying: With the thorn the rose is also
beaten ? He answered : From the following verse [Jer. ii. 29] :
** Wherefore will ye contend with me ? all of you have trans-
gressed against me, saith the Lord." (" All," although there
were some who were righteous, as the prophets, etc.) Said he
to him : You deduce it from this verse, and I deduce it from
the following [Ex. xvi. 28]: " How long refuse j/^ to keep my
commandments," etc. (" ye " includes Moses and Aaron also).
The same said again to the same : It is written [Gen. xlvii.
2] : ** And he took some of his brothers, five men." Who were
the five? He answered: So said R. Johanan : Those whose
names were mentioned twice in the benediction of Moses [Deut.
xliii.] (Zebulun, Gad, Dan, Asher, and Naphtali). But is not
Jehudah's name also mentioned twice ? Jehudah's name was
mentioned twice for another purpose (explained in Tract Mak-
koth, 10). He questioned him again: What is the origin of the
following people's saying: " One misfortune follows the other " ?
He answered: In the following Mishna: "The rich bring the
first-fruit in golden or silver baskets (and take the baskets back),
while the poor bring it in willow baskets, and the baskets remain
with the fruit for the priests." He said to him: You find it in
the Mishna, and I find it in the Scripture [Lev. xiii. 45] : " And
* The following series of questions is placed here because of the verse quoted,
" and Abraham prayed unto God," etc., from which Rabba bar Mari delivered his
statements in the text differing from Rabha ; and at the same time he mentions here
all other statements which each of them deduces from different verses, and casually
also others. They wanted also to find the origin of even the ordinary adages of the
people in the Holy Writ, on account of what is stated elsewhere in the Talmud, that
there is nothing in the world for which there can be found no hint in the Scripture.
(See vol. viii., Tract Taanith, p. 9.
TRACT BABA KAMA (THE FIRST GATE). 207
the leper. . . . Unclean, unclean, shall he call out."
(Hence, it is not enough that he is afflicted, he must himself call
it out.)
He said again: Where is the origin for the rabbis' saying:
Arise early in the morning and eat something, in the summer
because of the heat and in the winter because of the cold ; and
people say: Sixty men were running after one who used to eat
early in the morning, and could not overtake him ? In the verse
[Is. xlix. 10]: "They shall not be hungry nor thirsty, and
neither heat nor sun shall smite them." Said he: I, however,
find the origin in the following [Ex. xxiii. 25]: " And ye shall
serve the Lord," which means the reading of Shema and prayer;
" And he will bless thy bread, and thy water," which means the
bread and salt and the pitcher of water one takes immediately
thereafter; [and then he may be sure that] " I will remove sick-
ness from the midst of thee."
He said again: What is the origin of the rabbis' saying: If
your neighbor calls you " ass," put on a saddle {i.e., do not
answer him) ? He answered: In [Gen. xvi. 8] :" And he said,
Hagar, Sarah's maid, . . . And she said, From the face of
my mistress,''
He said again: And wherefrom is the people's saying:
** When talking to a stranger, tell him first of all the position
you are in " ? He answered: From [ibid. xxiv. 34]: " And he
said, I am Abraham's servant.*' And wherefrom is the people's
saying: A duck while it keeps its head down, its eyes still look
at a distance? He answered: From [I Samuel, xxv. 31]:
" And when the Lord will do good unto my lord, then do thou
remember thy handmaid." (While praying to save her life, she
hinted that he should marry her.)
And wherefrom the following people's saying : For the wine
furnished by the host to his guests thanks are due ; the main
thanks, however, receives the man who takes care of serving the
same in a nice manner? He answered : From [Numb, xxvii. 19] :
" And thou shalt lay thy hand upon him " ; and also [Deut.
xxxiv. 9] : '' And Joshua the son of Nun was full of the spirit of
wisdom ; for Moses had laid his hands upon him, etc." (Hence we
see that the whole credit is given to Moses.) And wherefrom the
following people's saying : A tree bearing bad fruit usually keeps
company with trees which do not bear fruit at all ? He answered :
This is written in the Pentateuch, repeated in the Prophets, men-
tioned a third time in the Hagiographa, also learned in a Mishna
2o8 THE BABYLONIAN TALMUD.
and taught in a Boraitha : Pentateuch [Gen. xxviii. 9] : " And Esau
went unto Ishmael." Prophets [Judges, xi. 3] : " And then gath-
ered themselves to Yiphthach idle men, and they went out with
him." Hagiographa [Ben Sira, xiii.] : '' Every fowl associates
with its kind and man with his equal." Mishna : ''All that is
attached to an unclean article is unclean and all that is attached
to a clean article is clean." Boraitha : " R. Eliezer said : Not in
vain did the cuckoo go to the crow, because it is of its kind."
He said again: And wherefrom the following saying: If you
advise your neighbor and he does not heed your advice, press
him to the wall and let him suffer? He answered : From [Ezek.
xxiv. 13]: ''Because I endeavored to cleanse thee, and thou
wouldst not be clean, thou shalt not be cleansed from thy un-
cleanness any more." And wherefrom the following saying: Do
not spit in the well from which you drank water? He answered :
From [Deut. xxiii. 8] : " Thou shalt not abhor an Edomite ; for
he is thy brother ; thou shalt not abhor an Egyptian ; because
thou wast a stranger in his land." And wherefrom the following
saying : If you will help me to lift the burden, I will carry it ;
and if not, I will not touch it ? He answered : From [Judges,
iv. 8] : " If thou wilt go with me, then will I go ; but if thou wilt
not go with me, I will not go." And wherefrom the following :
When we were young we were considered as men, and now when
we are old we are considered as children? He answered: It
is first written [Ex, xiii. 21]: "And the Lord went before
them . . . and by night in a pillar of fire, to give light to
them " ; and thereafter [ibid., xxiii. 20] : " Behold I send an angel
before thee, to keep you on the way." And wherefrom the fol-
lowing : If you keep in touch with oil, your hands will become
oily? He answered: From [Gen. xiii. 5]: "And Lot also, who
went with Abram, had flocks, and herds, and tents." R. Hanan
said : Whoso calls down divine judgment on his neighbor is
punished first, etc. (See Rosh Hashana, p. 22. There, however,
it is said in the name of R. Abin.) R. Itz'hux added to this :
Woe to him who cries for such, more than to him upon whom
the judgment is called down. We have so also learned in the
following Boraitha : " Both are punished (by the Divine Court),
but the one who calls down the judgment is punished first."
The same said again : Do not hold light the curse of a common
man, etc. (See Vol. VIIL, Tract Megila, p. 38.) R. Abahu
said : It is better for one to be of the persecuted than of the per-
secutors, as there are no more persecuted birds than doves and
TRACT BABA KAMA (THE FIRST GATE). 209
pigeons, and the Scripture made them fit for the altar. '* BUnd
my eye," etc. Said R. Assi * to Rabba : Why in the first part the
condition that he should be free is of no effect, and in the second
part it is? He answered : Because no one will ever forgive for
the loss of the principal members of his body. Said he to him :
Does, then, a man easily forgive for pain — and nevertheless a
Boraitha states : '' If one say to another, ' strike me,' or * wound
me, upon condition that you should not be liable for it,' and if
he does so, he is free ? Rabba remained silent. Thereafter he
said to him: Do you know how to explain this? He said: So
said R. Shesheth : The reason is for the indignity caused to his
family. It was taught : R. Oshiya said : For the reason just
mentioned ; and Rabha said : Because one does not forgive for
the loss of the principal members of his body. R. Johanan, how-
ever, said : One may forgive for all that was done to him ; and our
Mishna, which makes him liable, although it was on the condition
that he should be free, is because there is sometimes a '* nay "
which means *' yea " and a '' yea " which means *' nay " (explained
in the following Boraitha). We have learned also in the following
Boraitha: If one says to another, '' Strike me," or " wound me,"
and the other asks, *' On condition that I should be free?" and
he answered *' Yea ! " {i.e., if so, you would like to do so) ? Hence
this " yea " means " nay." "■ Tear my garment," and he says,
" And thereafter I should pay for it ?" And he answers, *' Nay."
which means " Yea, you may do so."t
'' Break my pitcher,'' etc. There is a contradiction from the
following Boraitha : It is written [Ex. xxii. 6] : '' If a man . . .
to keep," etc., for preservation ; but not when he says to him
keep it for destruction or for charity. (Hence we see that if
he told him to keep it for destruction, although he did not sav
on the condition of being free, he is nevertheless free?) Said
R. Huna : This presents no difficulty : The Boraitha speaks of
when it was delivered to the bailee for, and he accepted it for,
* This name is correct, according to Alphasi, as the name mentioned in the text
would be incompatible with the time in which R. Assi b. Hama lived.
f R. Johanan explains that our Mishna speaks of when there was a question
and an answer between the plaintiff and the defendant, and it was not clear whether
it meant yea or nay ; the Boraitha, however, speaks of when the plaintiff made the
condition that the defendant should be free without any question by the other. This
is Rashi's explanation. The text, however, of R. Johanan's saying mentioned above
seems to us to be very simple : It must be investigated how the condition is to be
understood — whether it is in the absolute affirmative form or in the form of a
question.
14
210 THE BABYLONIAN TALMUD.
destruction — then certainly he is free ; and the Mishna speaks of
when he told him to break the pitcher when the same was yet in
the hands of the owner. Said Rabba to him : The words " to
keep " in the Scripture mean certainly that it was delivered to
the bailee ; and nevertheless, if thereafter he told him to destroy
it, without making the condition to be free, he is liable, unless
he told him to keep it for destruction at the time of the deliv-
ery ? Therefore said Rabba : Both cases treat of destruction
after the delivery ; but the Mishna speaks of when he told him
to destroy it after he received it for safe-keeping, and the Bo-
raitha speaks of when he told him at the time of the delivery to
keep it for destruction.
There was an apvaxiS of charity which was sent to Pumbe-
ditha, and R. Joseph deposited it with a certain man who did
not take good care of it, and it was stolen from him. R. Joseph
held him responsible. Said Abayi to him : Did not the Bo-
raitha state, to keep it for preservation, but not for charity ? He
answered : The poor of Pumbeditha receive each a fixed sum
from charity, so that this money belonged to them, and they
can be the claimants thereof (and the reason why the Boraitha
holds the bailee free, if it was given to him to keep it for char-
ity, is because where the poor do not receive fi'xed sums at cer-
tain periods they cannot claim a certain fixed amount, and there-
fore it is considered that there are no claimants).
END OF VOLUME IL (X.
[Note. — The last two chapters of The First Gate will be printed in the suc^
needing volume.]
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